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2 III

Contents Federal Register Vol. 62, No. 95

Friday, May 16, 1997

Agricultural Research Service Economic Analysis Bureau NOTICES NOTICES Patent licenses; non-exclusive, exclusive, or partially Agency information collection activities: exclusive: Proposed collection; comment request, 27012 Callaway Chemical Co. of Columbus, GA, et al., 27005– 27006 Economics and Statistics Administration NOTICES Agriculture Department Meetings: See Agricultural Research Service 2000 Census Advisory Committee, 27012–27013 See Farm Service Agency See Foreign Agricultural Service Education Department See Forest Service RULES NOTICES Postsecondary education: Agency information collection activities: Student assistance, 27128 Proposed collection; comment request, 27005 NOTICES Grants and cooperative agreements; availability, etc.: Assassination Records Review Board Strengthening institutions programs, etc., 27130 NOTICES Formal determinations on records release, 27008–27011 Employment and Training Administration NOTICES Blind or Severely Disabled, Committee for Purchase From Agency information collection activities: People Who Are Proposed collection; comment request, 27068–27069 See Committee for Purchase From People Who Are Blind or Severely Disabled Employment Standards Administration Children and Families Administration PROPOSED RULES NOTICES Federal Coal Mine Health and Safety Act of 1969, as Grants and cooperative agreements; availability, etc.: amended: Family violence prevention and services program, 27045– Black Lung Benefits Act— 27059 Individual claims by former coal miners and dependents processing and adjudication; Commerce Department regulations clarification and simplification, 27000 See Economic Analysis Bureau NOTICES See Economics and Statistics Administration Minimum wages for Federal and federally-assisted See Export Administration Bureau construction; general wage determination decisions, See International Trade Administration 27069–27071 See National Oceanic and Atmospheric Administration Energy Department Committee for Purchase From People Who Are Blind or See Federal Energy Regulatory Commission Severely Disabled See Hearings and Appeals Office, Energy Department NOTICES Procurement list; additions and deletions, 27011–27012 Environmental Protection Agency RULES Committee for the Implementation of Textile Agreements Pesticides; tolerances in food, animal feeds, and raw NOTICES agricultural commodities: Export visa requirements; certification, waivers, etc.: Carbon disulfide, 26946–26949 China, 27017–27018 Clopyralid, 26949–26954 Emamectin benzoate, 26941–26946 Customs Service Propamocarb hydrochloride, 26960–26966 NOTICES Pyridaben, 26954–26960 Trade name recordation applications: PROPOSED RULES Swiss Gold Premium, 27108–27109 Clean Air Act: Prevention of significant deterioration of air quality Defense Department program— RULES Non-Federal Class I areas; permit review procedures, Civilian health and medical program of uniformed services 27158–27166 (CHAMPUS): Pesticides; tolerances in food, animal feeds, and raw TRICARE selected reserve dental program (TSRDP), agricultural commodities: 26939–26941 Bromoxynil, 27002 NOTICES Deoxyribonucleic acid etc., 27142–27149 Meetings: Plant pesticides, 27132–27142 Electron Devices Advisory Group, 27018–27019 Viral coat protein, 27149–27155 IV Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Contents

NOTICES Pontchartrain Natural Gas System, 27019–27020 Clean Air Act: Stingray Pipeline Co., 27020 Citizens suits; proposed settlements— Western Resources, Inc., et al., 27020–27021 Phoenix, AZ ozone nonattainment area, 27023 Williams Natural Gas Co., 27021 Environmental statements; availability, etc.: Williston Basin Interstate Pipeline Co., 27021 Agency statements— Comment availability, 27024 Federal Highway Administration Weekly receipts, 27024–27025 NOTICES Meetings: Environmental statements; notice of intent: National Drinking Water Advisory Council, 27025 Hennepin and Wright Counties, MN, 27107 Pesticide, food, and feed additive petitions: American Cyanamid Co., 27025–27027 Federal Housing Finance Board BASF Corp. et al., 27027–27033 RULES E.I. DuPont, 27033–27040 Federal home loan bank system: FMC Corp., 27040–27043 Bank or trust company deposits; definition modification— Equal Employment Opportunity Commission Foreign banks’ U.S. branches and agencies investment RULES deposits inclusion, 26921–26922 Debt Collection Improvement Act of 1996: Civil money penalty for violation of notice posting Federal Maritime Commission requirements; inflation adjustment, 26933–26934 NOTICES Agreements filed, etc., 27043–27044 Executive Office of the President Federal Reserve System See Management and Budget Office NOTICES Export Administration Bureau Banks and bank holding companies: RULES Change in bank control, 27044 Export administration regulations: Meetings; Sunshine Act, 27044–27045 License requirement for exports or reexports; entity list, Fish and Wildlife Service 26922–26923 NOTICES Farm Service Agency Environmental statements; availability, etc.: Kern water bank natural community conservation plan; RULES Kern County, California, 27062–27064 Program regulations: Boll Weevil eradication loan program; implementation, Food and Drug Administration 26918–26921 NOTICES Agency information collection activities: Federal Aviation Administration Submission for OMB review; comment request, 27059– NOTICES 27060 Meetings: Food additive petitions: Aviation Rulemaking Advisory Committee, 27106–27107 Exxon Chemical Co., 27060 Passenger facility charges; applications, etc.: Harmonisation International Conference; guidelines Pellston Regional Airport, MI; correction, 27107 availability: Photostability testing of new drug substances and Federal Communications Commission products, 27116–27122 RULES Television broadcasting: Foreign Agricultural Service Advanced television (ATV) systems; digital technology NOTICES conversion; reporting and recordkeeping Grants and cooperative agreements; availability, etc.: requirements, 26966–26992 Foreign market development cooperator program, 27006– 27007 Federal Deposit Insurance Corporation PROPOSED RULES Forest Service FDIC-insured State nonmember banks which are municipal NOTICES securities dealers: Environmental statements; notice of intent: Rescission of rule, 26994–26997 Wasatch-Cache National Forest, UT— Snowbird Ski and Summer Resort, 27007–27008 Federal Emergency Management Agency NOTICES Government Ethics Office Meetings: RULES Federal Interagency Committee on Emergency Medical Conflict of interests: Services, 27043 Post-employment restrictions; exemption of positions and revision of departmental component designations, Federal Energy Regulatory Commission 26915–26918 NOTICES Applications, hearings, determinations, etc.: Health and Human Services Department Chandeleur Pipe Line Co., 27019 See Children and Families Administration NorAm Gas Transmission Co., 27019 See Food and Drug Administration Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Contents V

Hearings and Appeals Office, Energy Department Land Management Bureau NOTICES RULES Cases filed, 27021–27023 Minerals management: Decisions and orders, 27023 Mining claims under general mining laws; surface management Housing and Urban Development Department Correction, 26966 NOTICES RULES Federal regulatory reform: Classification of public lands: Low income housing— Nevada, 27065 Assisted housing admission preferences; Total Realty actions; sales, leases, etc.: development cost calculation; Housing assistance Wyoming, 27065–27066 payments (Section 8), 27124–27126 Survey plat filings: NOTICES Colorado, 27066 Agency information collection activities: Legal Services Corporation Submission for OMB review; comment request, 27060– 27061 NOTICES Grants and cooperative agreements; availability, etc.: Grants and contracts; competitive grant funds; correction, Facilities to assist homeless— 27071 Excess and surplus Federal property, 27061 Grants and cooperative agreements; availability, etc.: Historically black colleges and universities program; Civil legal service areas— correction, 27061–27062 Delaware County, PA; correction, 27071 Management and Budget Office Indian Affairs Bureau NOTICES PROPOSED RULES Grants and cooperative agreements; availability, etc.: Contracts and grants: Welfare-to-Work Initiative, 27077–27078 Indian highway safety program; competitive grant selection criteria, 27000–27002 National Aeronautics and Space Administration NOTICES NOTICES Meetings: Inventions, Government-owned; availability for licensing, Tribal consultation on Tribal shares, 27064–27065 27071–27072 Tribal-State Compacts approval; Class III (casino) gambling: Meetings: Confederated Salish and Kootenai tribes, 27065 Life and Microgravity Sciences and Applications Advisory Committee, 27072 Interior Department Patent licenses; non-exclusive, exclusive, or partially See Fish and Wildlife Service exclusive: See Indian Affairs Bureau Command and Control Technologies, Inc., 27072 See Land Management Bureau Dominion Resources, Inc., 27072 See Reclamation Bureau National Credit Union Administration NOTICES Internal Revenue Service Meetings; Sunshine Act, 27072–27073 NOTICES Agency information collection activities: National Oceanic and Atmospheric Administration Proposed collection; comment request, 27109–27112 RULES Fishery conservation and management: International Trade Administration Alaska; fisheries of Exclusive Economic Zone— NOTICES Greenland turbot, 26992–26993 Antidumping: NOTICES Welded carbon steel pipe and tube from— Agency information collection activities: Turkey, 27013–27014 Proposed collection; comment request, 27014–27016

National Science Foundation Justice Department See Justice Programs Office NOTICES Meetings: Advanced Scientific Computing Special Emphasis Panel, Justice Programs Office 27073 NOTICES Biological Sciences Special Emphasis Panel, 27073 Grants and cooperative agreements; availability, etc.: Chemistry Special Emphasis Panel, 27073 State prisoners program; residential substance abuse Civil and Mechanical Systems Special Emphasis Panel, treatment; evaluations solicitation, 27068 27073–27074 Electrical and Communications Systems Special Labor Department Emphasis Panel, 27074 See Employment and Training Administration Geosciences Special Emphasis Panel, 27074 See Employment Standards Administration Information, Robotics and Intelligent Systems Special NOTICES Emphasis Panel, 27074 Agency information collection activities: Materials Research Special Emphasis Panel, 27074–27075 Submission for OMB review; comment request, 27068 Physics Special Emphasis Panel, 27075 VI Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Contents

Nuclear Regulatory Commission NOTICES NOTICES Railroad services abandonment: Agency information collection activities: Indiana Rail Road Co., 27107–27108 Proposed collection; comment request, 27075 Owensville Terminal Co., Inc., 27108 Submission for OMB review; comment request, 27075– 27076 Tennessee Valley Authority Applications, hearings, determinations, etc.: NOTICES Boston Edison Co., 27076 Record of decision: Homestake Mining Co., 27076–27077 United States Penitentiary; proposed construction, Lee Pennington Gap, VA, 27103–27106 Office of Management and Budget See Management and Budget Office Textile Agreements Implementation Committee See Committee for the Implementation of Textile Public Health Service Agreements See Food and Drug Administration Thrift Supervision Office Reclamation Bureau NOTICES NOTICES Agency information collection activities: Agency information collection activities: Proposed collection; comment request, 27112–27113 Submission for OMB review; comment request, 27066– 27067 Transportation Department Securities and Exchange Commission See Federal Aviation Administration See Federal Highway Administration RULES Investment companies: See Surface Transportation Board NOTICES Investment company assets; custody outside the United Aviation proceedings: States, 26923–26933 Agreements filed; weekly receipts, 27106 NOTICES Self-regulatory organizations; proposed rule changes: Certificates of public convenience and necessity and Boston Stock Exchange, Inc., 27080–27083 foreign air carrier permits; weekly applications, Chicago Board Options Exchange, Inc., 27083–27084 27106 Chicago Stock Exchange, Inc., 27084–27085 Depository Trust Co., 27085–27087 Treasury Department Government Securities Clearing Corp., 27088–27091 See Customs Service MBS Clearing Corp., 27091 See Internal Revenue Service Midwest Clearing Corp., 27091–27093 See Thrift Supervision Office National Association of Securities Dealers, Inc., 27093– RULES 27096 Privacy Act; implementation, 26934–26939 Pacific Exchange, Inc., 27096–27097 Participants Trust Co., 27097–27098 United States Information Agency Philadelphia Stock Exchange, Inc., 27099–27100 NOTICES Securities Clearing Corp., 27100–27102 Agency information collection activities: Applications, hearings, determinations, etc.: Submission for OMB review; comment request, 27113 Public utility holding company filings, 27079–27080

Social Security Administration Separate Parts In This Issue PROPOSED RULES Social security benefits and supplemental security income: Part II Federal old age, survivors and disability insurance— Department of Health and Human Services, Food and Drug Disability claims; testing elimination of final step in Administration, 27116–27122 administrative review process, 26997–27000 Part III State Department Department of Housing and Urban Development, 27124– NOTICES 27126 Meetings: Government Activities on International Harmonization of Part IV Chemical Classification and Labeling Systems, 27102 Department of Education, 27128 Shipping Coordinating Committee, 27102 Reports; availability, etc.: Part V Climate change; special report preparation on regional Department of Education, 27130 impacts, 27102–27103

Surface Transportation Board Part VI PROPOSED RULES Environmental Protection Agency, 27132–27155 Contracts and exemptions: Rail general exemption authority— Part VII Nonferrous recyclables, 27003–27004 Environmental Protection Agency, 27158–27166 Nonferrous recyclables commodities, 27002–27003 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Contents VII

Reader Aids Additional information, including a list of public laws, telephone numbers, reminders, and finding aids, appears in the Reader Aids section at the end of this issue.

Electronic Bulletin Board Free Electronic Bulletin Board service for Public Law numbers, Federal Register finding aids, and a list of documents on public inspection is available on 202–275– 1538 or 275–0920. VIII Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Contents

CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

5 CFR 2641...... 26915 7 CFR 1941...... 26918 12 CFR 931...... 26921 934...... 26921 Proposed Rules: 343...... 26994 15 CFR 744...... 26922 17 CFR 270...... 26923 20 CFR Proposed Rules: 404...... 26997 416...... 26997 718...... 27000 722...... 27000 725...... 27000 726...... 27000 727...... 27000 24 CFR 5...... 27124 941...... 27124 950...... 27124 968...... 27124 25 CFR Proposed Rules: 181...... 27000 29 CFR 1601...... 26933 31 CFR 1...... 26934 32 CFR 199...... 26939 34 CFR 668...... 27128 40 CFR 180 (5 documents) ...... 26941, 26946, 26949, 26954, 26960 Proposed Rules: 51...... 27158 52...... 27158 180 (4 documents) ...... 27002, 27132, 27142, 27149 43 CFR 3800...... 26966 47 CFR 73...... 26966 49 CFR Proposed Rules: 1039 (2 documents) ...... 27002, 27003 50 CFR 679...... 26992 26915

Rules and Regulations Federal Register Vol. 62, No. 95

Friday, May 16, 1997

This section of the FEDERAL REGISTER by 18 U.S.C. 207(c)(2)(C) to exempt from a senior employee position. contains regulatory documents having general eligible employee positions from 18 However, eligible senior employees may applicability and legal effect, most of which U.S.C. 207(c), the one-year post- be permitted to communicate to or are keyed to and codified in the Code of employment restriction applicable to appear before parts of their former Federal Regulations, which is published under former ‘‘senior’’ employees. As department or agency if one or more 50 titles pursuant to 44 U.S.C. 1510. explained in 5 CFR 2641.201(d)(1), components of the department or The Code of Federal Regulations is sold by termination from an exempted position agency have been designated as separate the Superintendent of Documents. Prices of does not trigger the restriction. agencies or bureaus by OGE. new books are listed in the first FEDERAL Pursuant to the procedures prescribed As specified in 5 CFR REGISTER issue of each week. in 5 CFR 2641.201(d), the designated 2641.201(e)(3)(iii), the Director of OGE agency ethics official at the Department ‘‘shall by rule make or revoke a of Justice forwarded a letter to OGE component designation after OFFICE OF GOVERNMENT ETHICS dated May 16, 1994, requesting that the considering the recommendation of the Director of OGE exempt the 21 United designated agency ethics official.’’ 5 CFR Part 2641 States Trustee positions from the Component designations are listed in restrictions of 18 U.S.C. 207(c). After RIN 3209±AA07 appendix B of this part. Pursuant to the carefully reviewing that letter and other procedures prescribed in 5 CFR Post-Employment Conflict of Interest relevant information, I determined as 2641.201(e), several agencies and Restrictions; Exemption of Positions Director of OGE to exempt the 21 departments have forwarded letters to and Revision of Departmental positions from 18 U.S.C. 207(c) in light OGE requesting the designation or Component Designations of the criteria set forth in 5 CFR revocation of components since 2641.201(d)(5). These exemptions appendix B was last revised in 1993 (58 AGENCY: Office of Government Ethics became effective on June 2, 1994, the FR 33755–33756 (June 21, 1993)). After (OGE). date of my written response to the ACTION: Final rule. Department of Justice. See 5 CFR carefully reviewing these requests in 2641.201(d)(4). light of the criteria in 18 U.S.C. 207(h) SUMMARY: The Office of Government As specified in 5 CFR as implemented in 5 CFR Ethics is issuing this rule to provide 2641.201(d)(3)(iii), the Director of OGE 2641.201(e)(6), I have determined to notice of the exemption of certain senior ‘‘shall annually publish in appendix A designate or revoke certain components employee positions from the one-year to this part an updated compilation of as described below. post-employment restriction of 18 all exempted positions or categories of As requested by the Department of U.S.C. 207(c) and to designate certain positions.’’ Accordingly, appendix A of Commerce, I am revoking the additional departmental components part 2641 is being amended by this rule designation of the United States Travel and to revoke certain existing to ensure publication of the exemptions and Tourism Administration (USTTA) component designations for purposes of in the CFR. These exemptions were not as a distinct and separate component of 18 U.S.C. 207(c). published previously due to that Department. The USTTA was EFFECTIVE DATES: The additions to administrative oversight. recently eliminated, although some of appendix A to part 2641, as set forth in Appendix A of this part, the heading its functions continue to be performed amendatory paragraph 2 below, are of which is being revised to conform by another component of the retroactively effective June 2, 1994. with that of appendix B, includes Department. The amendments to appendix B to parenthetical entries highlighting the As requested by the Department of part 2641, as set forth in amendatory effective dates of the exemptions. As Defense (DOD), I am revoking the paragraph 3 below, are effective May 16, indicated in 5 CFR 2641.201(d)(4), ‘‘[a]n designations of the Defense Mapping 1997. exemption shall inure to the benefit of Agency and the Defense Nuclear Agency Finally, the removal of certain the individual who holds the position designations from appendix B to part as distinct and separate components of when the exemption takes effect, as well DOD. I am replacing them with two 2641 (and a related footnote as to his successors, but shall not benefit redesignation), as set forth in components which are, in large part, individuals who terminated senior successor components. The new amendatory paragraph 4 below, are service prior to the effective date of the effective on August 14, 1997. National Imagery and Mapping Agency exemption.’’ absorbed the former Defense Mapping FOR FURTHER INFORMATION CONTACT: Julia Designation and Revocation of Agency and has responsibility for Loring Eirinberg, Office of General Departmental Components certain functions formerly performed by Counsel and Legal Policy, Office of the Central Intelligence Agency and by Government Ethics; telephone: 202– The Director of OGE is authorized by several offices within DOD. The Defense 208–8000, extension 1108; TDD: 202– 18 U.S.C. 207(h) to designate distinct Nuclear Agency was renamed the 208–8025; FAX: 202–208–8037. and separate departmental or agency components in the executive branch for Defense Special Weapons Agency in SUPPLEMENTARY INFORMATION: purposes of 18 U.S.C. 207(c). The 1996 as a result of a new charter and an A. Substantive Discussion representational bar of 18 U.S.C. 207(c) expanded mission. The missions of the usually extends to the whole of any two new agencies remain distinct and Exemption of Positions department or agency in which a former separate from the parent Department. The Director of the Office of senior employee served in any capacity As recommended by the Department Government Ethics (OGE) is authorized during the year prior to termination of Health and Human Services (HHS), I 26916 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations am revoking the designation of two in existence for some years, it was not Register as promptly as possible. Also, components and designating several previously designated as a component this rule is interpretive in nature and, additional components as a result of a of the DOL for purposes of 18 U.S.C. thus, it is exempt from the notice and reorganization of that Department. 207(c). delayed effectiveness requirements of 5 Specifically, I am revoking the I am designating the Surface U.S.C. 553. designation of the Social Security Transportation Board (STB) as an Executive Order 12866 Administration (SSA) as a distinct and additional distinct and separate separate component of HHS since the component of the Department of In promulgating this final rule, the SSA is no longer a part of the Transportation (DOT). The STB, the Office of Government Ethics has Department. I am also revoking the successor to the Interstate Commerce adhered to the regulatory philosophy designation of the Public Health Service Commission, was recently established and applicable principles of regulation (PHS). I am, however, designating as as an independent entity within DOT. in section 1 of Executive Order 12866, distinct and separate seven components As requested by the Department of the Regulatory Planning and Review. This that had previously been operating Treasury, I am revoking the designation rule has not been reviewed by the Office divisions within the PHS: The Agency of the United States Savings Bonds of Management and Budget under that for Health Care Policy and Research; the Division (SBD) as a distinct and separate Executive order since it deals with Agency for Toxic Substances and component of that Department. The agency organization, management, and Disease Registry; the Centers for Disease responsibilities of the former SBD have personnel matters and is not Control and Prevention, the Health been taken over by the Bureau of the ‘‘significant’’ thereunder. Resources and Services Administration, Public Debt, another component of the the Indian Health Service, the National Department. Regulatory Flexibility Act Institutes of Health; and the Substance Finally, I am revoking the designation As Director of the Office of Abuse and Mental Health Services of the Central Liquidity Facility (CLF) as Government Ethics, I certify under the Administration. Finally, I am a component of the National Credit Regulatory Flexibility Act (5 U.S.C. designating one new HHS operating Union Administration (NCUA). The chapter 6) that this rule will not have a division as an additional distinct and NCUA recommended the revocation significant economic impact on a separate component, the Administration because the functions of the CLF have substantial number of entities because it on Aging. been more closely integrated into those affects only Federal agencies and As recommended by the Department of the NCUA as a whole. Since the CLF current and former Federal employees. of the Interior (DOI), I am revoking the was the sole designated component of designation of the Bureau of Mines and the NCUA, I am removing the NCUA Paperwork Reduction Act the Office of Territorial and from the listing in Appendix B of International Affairs to reflect a The Paperwork Reduction Act (44 ‘‘parent’’ departments or agencies. U.S.C. chapter 35) does not apply to this reorganization of the DOI that As indicated in 5 CFR 2641.201(e)(4), eliminated those two bureaus. I am also rule because it does not contain a designation ‘‘shall be effective as of information collection requirements that revising the listing for the DOI to the effective date of the rule that creates indicate that the name of the Office of require the approval of the Office of the designation, but shall not be Management and Budget. Surface Mining has been changed to the effective as to employees who Office of Surface Mining Reclamation terminated senior service prior to that List of Subjects in 5 CFR Part 2641 and Enforcement. date.’’ Most designations were effective Conflict of interests, Government As recommended by the Department as of January 1, 1991. The effective date employees. of Justice (DOJ), I am amending of subsequent designations is indicated appendix B so that the several Offices of by means of parenthetical entries in Approved: May 9, 1997. the United States Marshals Service shall appendix B. The new component Stephen D. Potts, henceforth be considered a single designations made by this rulemaking Director, Office of Government Ethics. component for purposes of 18 U.S.C. document are effective May 16, 1997. As 207(c). Prior to this rule, the Office of Accordingly, for the reasons set forth also provided in 5 CFR 2641.201(e)(4), in the preamble, the Office of the United States Marshal for each a revocation is effective 90 days after the judicial district had been considered a Government Ethics is amending part effective date of the rule that revokes the separate component from each other 2641 of subchapter B of chapter XVI of designation. Accordingly, the such Office. Also, the United States title 5 of the Code of Federal component designation revocations Marshals Office for each judicial district Regulations as follows: made in this rulemaking will take effect will, like other designated DOJ August 14, 1997. Revocations are not components operating within a district, PART 2641Ð[AMENDED] effective as to any individual be considered separate from each Office terminating senior service prior to the 1. The authority citation for part 2641 of the United States Attorney for that expiration of the 90-day period. continues to read as follows: district. In addition, I am amending the entry for the Independent Counsel to B. Matters of Regulatory Procedure Authority: 5 U.S.C. App. (Ethics in clarify that the designation applies only Government Act of 1978); 18 U.S.C. 207; E.O. with respect to Independent Counsel Administrative Procedure Act 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, appointed by the Attorney General. Pursuant to 5 U.S.C. 553, as the 3 CFR, 1990 Comp., p. 306. And, I am correcting the title of the Director of OGE, I find that good cause Office of the Pardon Attorney. exists for waiving the general notice of 2. Effective June 2, 1994, appendix A As recommended by the Department proposed rulemaking and 30-day to part 2641 is amended by revising the of Labor (DOL), I am designating the delayed effective date. It is important appendix heading and by adding a Pension and Welfare Benefits that OGE’s designation of exempted listing for the Department of Justice Administration (PWBA) as an additional positions and designation or revocation between the introductory text and the distinct and separate component of that of separate departmental or agency listing for the Securities and Exchange Department. While the PWBA has been components be published in the Federal Commission to read as follows: Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26917

Appendix A to Part 2641—Positions Health Care Financing Administration Offices of the United States Attorney (94) 4 Exempted from 18 U.S.C. 207(c) Health Resources and Services Offices of the United States Marshal (94) Administration (effective May 16, 1997) (expiring August 14, 1997) 5 * * * * * 6 Agency: Department of Justice. Positions: Indian Health Service (effective May 16, Offices of the United States Trustee (21) United States Trustee (21) (effective June 2, 1997) Tax Division National Institutes of Health (effective May 1994). United States Marshals Service (effective 16, 1997) May 16, 1997) * * * * * Public Health Service (expiring August 14, United States Parole Commission 3. Effective May 16, 1997, appendix B 1997) Parent: Department of Labor to part 2641 is amended by revising the Social Security Administration (expiring Components: listings for the Department of August 14, 1997) Bureau of Labor Statistics Commerce, the Department of Defense, Substance Abuse and Mental Health Employment and Training Administration the Department of Health and Human Services Administration (effective May Employment Standards Administration 16, 1997) Services, the Department of the Interior, Mine Safety and Health Administration Parent: Department of the Interior Occupational Safety and Health the Department of Justice, the Components: 1 Administration Department of Labor, the Department of Bureau of Indian Affairs (effective January Pension and Welfare Benefits Transportation, the Department of the 28, 1992) Administration (effective May 16, 1997) Treasury and the National Credit Union Bureau of Land Management (effective * * * * * Administration, to read as follows: January 28, 1992) Parent: Department of Transportation Bureau of Mines (effective January 28, Components: Appendix B to Part 2641—Agency 1992; expiring August 14, 1997) Components for Purposes of 18 U.S.C. 207(c) Federal Aviation Administration Bureau of Reclamation (effective January Federal Highway Administration * * * * * 28, 1992) Federal Railroad Administration Parent: Department of Commerce Minerals Management Service (effective Federal Transit Administration Components: January 28, 1992) Maritime Administration Bureau of the Census National Park Service (effective January 28, National Highway Traffic Safety Bureau of Export Administration (effective 1992) Administration January 28, 1992) Office of Surface Mining Reclamation and Saint Lawrence Seaway Development Economic Development Administration Enforcement (effective January 28, 1992) Corporation Office of Territorial and International International Trade Administration Surface Transportation Board (effective Affairs (effective January 28, 1992; Minority Business Development May 16, 1997) expiring August 14, 1997) Administration United States Coast Guard U.S. Fish and Wildlife Service (effective National Oceanic and Atmospheric Parent: Department of the Treasury January 28, 1992) Administration U.S. Geological Survey (effective January Components: National Telecommunications and 28, 1992) Bureau of Alcohol, Tobacco and Firearms Information Administration Parent: Department of Justice Bureau of Engraving and Printing Patent and Trademark Office Components: Bureau of the Mint Technology Administration (effective Antitrust Division Bureau of the Public Debt January 28, 1992) Bureau of Prisons (including Federal Comptroller of the Currency United States Travel and Tourism Prison Industries, Inc.) Federal Law Enforcement Training Center Administration (effective January 28, Civil Division Financial Management Center 1992; expiring August 14, 1997) Civil Rights Division Internal Revenue Service Parent: Department of Defense Community Relations Service Office of Thrift Supervision Components: Criminal Division United States Customs Service Department of the Air Force Drug Enforcement Administration United States Savings Bonds Division Department of the Army Environment and Natural Resources (effective April 7, 1992; expiring August Department of the Navy Division 14, 1997) Defense Information Systems Agency Executive Office for United States United States Secret Service Defense Intelligence Agency Attorneys 2 (effective January 28, 1992) Parent: National Credit Union Defense Logistics Agency Executive Office for United States Administration (expiring August 14, 1997) Defense Mapping Agency (expiring August Trustees 3 (effective January 28, 1992) Component: 14, 1997) Federal Bureau of Investigation Central Liquidity Facility (expiring August Defense Nuclear Agency (expiring August Foreign Claims Settlement Commission 14, 1997) 14, 1997) Immigration and Naturalization Service 4. Effective August 14, 1997, appendix B to Defense Special Weapons Agency (effective Independent Counsel appointed by the part 2641 is further amended by: May 16, 1997) Attorney General A. Removing the listing for the National National Imagery and Mapping Agency Office of Justice Programs Credit Union Administration (and the sole (effective May 16, 1997) Office of the Pardon Attorney (effective component thereunder); National Security Agency January 28, 1992) B. Removing the United States Travel and * * * * * Tourism Administration from the listing for Parent: Department of Health and Human 1 All designated components under the the Department of Commerce, the Defense Services jurisdiction of a particular Assistant Secreary shall Mapping Agency and the Defense Nuclear be considered a single component for purposes of Agency from the listing for the Department Components: determining the scope of 18 U.S.C. 207(c) as of Defense, the Social Security Administration on Aging (effective May 16, applied to senior employees serving on the Administration and the Public Health Service 1997) immediate staff of that Assistant Secreary. Administration for Children and Families 2 The Executive Office for Untied States (effective anuary 28, 1992) Attorneys shall not be considered separate from any 4 Each Office of the United States Attorney for a Agency for Health Care Policy and Office of the United States Attorney for a judicial judicial district shall be considered a separate component from each other such office. Research (effective May 16, 1997) district, but only from other designated components of the Department of Justice. 5 Each Office of the Untied States Marshal for a Agency for Toxic Substances and Disease 3 The Executive Office for Untied States judicial district shall be considered a separate Registry (effective May 16, 1997) Attorneys shall not be considered separate from any component from each other such office. Centers for Disease Control and Prevention Office of the United States Trustee for a region, but 6 Each Office of the United States Trustee for a (effective May 16, 1997) only from other designated components of the region shall be considered a separate component Food and Drug Administration Department of Justice. from each other such office. 26918 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations from the listing for the Department of Health Regulatory Flexibility Act result in expenditures to State, local, or and Human Services, the Bureau of Mines tribal governments, in the aggregate, or and the Office of Territorial and International It has been determined that the Regulatory Flexibility Act is not the private sector, of $100 million or Affairs from the listing for the Department of more in any 1 year. When such a the Interior, the United States Savings Bonds applicable to this program. The Division from the listing for the Department administration certifies that this statement is needed for a rule, section of the Treasury, and the Offices of the United program will not have a significant 205 of the UMRA generally requires States Marshal (94) (and related footnote 5) economic impact on a substantial FSA to identify and consider a from the listing for the Department of Justice; number of small entities. By statute this reasonable number of regulatory and program applies only to State chartered alternatives and adopt the least costly, C. Redesignating footnote 6 as footnote 5. non-profit organizations whose primary more cost-effective or least burdensome [FR Doc. 97–12898 Filed 5–15–97; 8:45 am] mission is the eradication of the boll alternative that achieves the objectives BILLING CODE 6345±01±U weevil. These loans cannot be made to of the rule. small entities or individuals. Small This rule contains no Federal entity farmers may be indirectly mandates, under the regulatory impacted by the program through lower provisions of title II of the UMRA, for DEPARTMENT OF AGRICULTURE producer assessments for boll weevil State, local, and tribal governments or eradication, but the impact will be the the private sector. Therefore, this rule is Farm Service Agency same for large entity and individual not subject to the requirements of sections 202 and 205 of the UMRA. 7 CFR Part 1941 producers. Environmental Evaluation Paperwork Reduction Act RIN 0560±AE99 This document has been reviewed in The Agency has reviewed this rule to accordance with 7 CFR part 1940, determine the applicability of the Implementation of the Boll Weevil subpart G, ‘‘Environmental Program’’. Paperwork Reduction Act of 1995. In Eradication Loan Program An environmental assessment (EA) has accordance with 5 CFR section AGENCY: Farm Service Agency, USDA. been completed. The EA found no 1320.3(c)(4), there are fewer than 10 significant environmental impact of the ACTION: Interim rule with request for persons or organizations from whom a boll weevil eradication loan program. comments. collection of information can reasonably The record of decision and FONSI were be expected within a 12-month period. SUMMARY: This action is being taken to published in the Federal Register on The information requirements of this implement provisions of the April 21, 1997. program do not impact a substantial Agriculture, Rural Development, Food Executive Order 12988 majority of the industry, nor do they and Drug Administration, and Related meet the rule of general applicability. The interim rule has been reviewed in Agencies Appropriations Act, 1997 The Agency determined that the accordance with Executive Order 12988. regulatory provisions of 5 CFR part 1320 (Act). The Act directed the Secretary to The provisions of this rule are not do not apply to this rule; therefore, it implement a new loan program to retroactive and preempt State laws to was not reviewed by the Office of facilitate efforts to eradicate, and protect the extent such laws are inconsistent Management and Budget. eradication zones, of the boll weevil. with the provisions of this rule. The The intended effect is to comply with provisions of this rule are not Background the Act, assist in boll weevil retroactive. In accordance with section eradication, and promote cooperation The Boll Weevil Eradication Program 212 (e) of the Department of Agriculture is a cooperative program between the between the United States Department Reorganization Act of 1994, before any of Agriculture (USDA) and State Federal and State governments and the judicial action may be brought cotton industry. The Animal and Plant chartered organizations with regard to concerning the provisions of this rule, boll weevil eradication. Health Inspection Service (APHIS) administrative review under 7 CFR parts provides eligible grower organizations: DATES: Effective May 16, 1997. 11 and 780 must be exhausted. Comments must be submitted by July (1) Equipment; (2) technical and 15, 1997. Executive Order 12372 administrative support; and (3) cost- sharing not to exceed 30 percent of the ADDRESSES: Submit written comments This program is not subject to the program costs. The portion of program to the Director, Farm Loan Programs provisions of Executive Order 12372, costs not provided for by APHIS are Loan Making Division, Farm Service which requires intergovernmental paid by the eligible grower Agency, United States Department of consultation with State and local organizations through the collection of Agriculture, 1400 Independence Ave. officials. See the notice related to 7 CFR producer assessments. The high initial SW, Washington, D.C. 20250–0522. part 3015, subpart V, published at 48 FR 29115 (June 24, 1983). costs of eradication programs result in FOR FURTHER INFORMATION CONTACT: levels of assessments which create Michael R. Hinton, Branch Chief, Funds Unfunded Mandates significant financial hardship on many Management/Direct Loans Branch, FSA. Title II of the Unfunded Mandates producers. Telephone: 202–720–1472; facsimile: Reform Act of 1995 (UMRA), Pub. L. The Act directed the Secretary to 202–690–1117; or e-mail: 104–4, establishes requirements for implement a new loan program to [email protected] Federal agencies to assess the effects of facilitate efforts to eradicate, and protect SUPPLEMENTARY INFORMATION their regulatory actions on State, local, eradication zones, of the boll weevil. By and tribal governments and the private implementing the Boll Weevil Executive Order 12866 sector. Under section 202 of the UMRA, Eradication Loan Program, FSA will This interim rule has been determined the Farm Service Agency (FSA) provide loans to eligible grower to be not significant for purposes of generally must prepare a written organizations for the purpose of Executive Order 12866 and, therefore, statement, including a cost-benefit spreading initial startup costs over a has not been reviewed by the Office of analysis, for proposed and final rules period of several years, which will Management and Budget. with ‘‘Federal mandates’’ that may reduce the initial annual assessment Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26919 producers are required to pay. The end could also cripple program expansion liquidating these loans. The program result will be a financially feasible into new areas, and possibly even delay objective is to assist producers and state program. program implementation for at least one government agencies in the eradication The determination of whether or not year. Publication of this rule for of boll weevils from cotton producing an organization is an eligible immediate effect without prior notice areas. organization to receive APHIS cost share and comment as an interim final rule, money is a determination made solely therefore, is warranted. Despite the need § 1941.971 Definitions. by APHIS. FSA will rely on that for the program to be effective upon As used in this subpart, the following determination, in part, in determining publication of this interim rule, FSA definitions apply: whether or not a producer organization will accept comments for a 60 day APHIS means the Animal and Plant is an eligible organization to receive a comment period after publication to Health Inspection Service, or any boll weevil eradication loan from FSA. determine if the program should be successor Agency. Because this determination is solely an subsequently modified. Extra payment means a payment APHIS determination it will be subject which was derived from sale of property to any APHIS review rights but will not List of Subjects in 7 CFR Part 1941 serving as security for a loan, such as be subject to any FSA appeal rights in Loan programs/agriculture, Pesticides real estate or vehicles. Proceeds from accordance with 7 CFR parts 11 or 780. and pests, Cotton. program assessments and other normal Denial of a boll weevil eradication loan For reasons set out in the preamble, operating income, when remitted for on other bases will be subject to FSA 7 CFR chapter XVIII is amended as set payment on a loan will not be review rights. forth below. considered as an extra payment. The Act requires the Secretary to FSA means the Farm Service Agency, establish terms and conditions PART 1941ÐOPERATING LOANS its employees, and any successor including repayment schedules, interest agency. 1. The authority citation for part 1941 rates, and collateral requirements that Non-profit corporation means a is revised to read as follows: best meet the needs of the borrowers. private domestic corporation created FSA has established the rates, terms, Authority: 5 U.S.C 301, 7 U.S.C. 1989, Pub. and organized under the laws of the and collateral requirements of this L. 104–180. States in which the entity will operate regulation to allow for maximum 2. Subpart C is added to read as whose net earnings are not distributable flexibility. These requirements are follows: to any private shareholder or individual negotiable to a large extent, but the loan and which qualify under Internal will be adequately secured. Subpart CÐBoll Weevil Eradication Loan Program Revenue Service code. Cotton grower organizations which Program subsidy account means a are involved in eradication programs Sec. budget account established under the have an urgent need for the new FSA 1941.970 Introduction. 1941.971 Definitions. Credit Reform provisions of the loans. This need affects two critical Omnibus Budget Reconciliation Act of areas: existing programs, and new 1941.972 [Reserved] 1941.973 [Reserved] 1990 to cover all credit-related expansion programs for 1997. 1941.974 [Reserved] budgetary outlays for a specific loan or Existing programs in Texas and the 1941.975 Loan eligibility requirements. guarantee program. Southeast are experiencing challenges 1941.976 Eligible loan purposes. Restructure means to modify the regarding cashflow. Payroll expenses 1941.977 Environmental requirements. terms of a loan. This includes and the expense of ordering equipment 1941.978 Equal opportunity and non- modification of the interest rate or and supplies for the coming season discrimination requirements. repayment term of the loan. 1941.979 Other Federal, State, and local require significant resources Security means assets pledged as immediately. These ongoing programs requirements 1941.980 Interest rates, terms, security collateral to assure repayment of a loan are not scheduled to collect grower in the event there is a default on the assessments for the 1997 season until requirements, and repayment. 1941.981 Economic feasibility loan. late spring or even mid-summer. requirements. Without the loan program to 1941.982 [Reserved] §§ 1941.972±1941.974 [Reserved] supplement APHIS grant money, they 1941.983 [Reserved] § 1941.975 Loan eligibility requirements. will not be able to meet their current 1941.984 [Reserved] operating expenses and the programs 1941.985 [Reserved] (a) An eligible organization must: will be forced to be suspended due to 1941.986 Application processing. (1) Meet all requirements prescribed a lack of financial resources. Their 1941.987 Loan approval and obligation of by APHIS to qualify for cost-share grant cashflow needs are critical. funds. funds as determined by APHIS, (FSA In addition, several new areas have 1941.988 Funding applications. will accept APHIS’ determination as to conducted referenda to determine areas 1941.989 Loan closing. an organization’s qualification); 1941.990 Loan monitoring. (2) Have appropriate charter and legal of program expansion in 1997. Western 1941.991 Loan servicing. Louisiana and most of Mississippi have authority as a non-profit corporation to held affirmative referenda and are Subpart CÐBoll Weevil Eradication operate a boll weevil eradication moving toward starting their programs Loan Program program in any State and biological or in the coming season. Large quantities geographic region of any State in which of capital equipment and supplies will § 1941.970 Introduction. it operates; need to be ordered immediately to The regulations of this subpart set (3) Possess the legal authority to enter ensure delivery prior to the start of these forth the terms and conditions under into contracts, including debt two programs. which loans are made under the Boll instruments; Any delay in obtaining FSA loans Weevil Eradication Loan Program. (4) Operate in an area in which could seriously restrict current These regulations are applicable to producers have approved a referendum operations and spring activities in the applicants, borrowers, and other parties authorizing producer assessments and existing program areas. Such delay involved in making, servicing, and in which an active eradication or post- 26920 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations eradication program is underway or (ii) Accounting and financial (f) Copy of the referendum used to scheduled to begin no later than the reporting; and establish the assessments and a fiscal year following the fiscal year in (iii) Protection of the environment. certification from the Board of Directors which the application is submitted; that the referendum passed; (5) Be unable to obtain, and certify in § 1941.980 Interest rates, terms, security (g) Evidence that the officers and writing, that credit from private, requirements, and repayment. employees authorized to disburse funds commercial, or cooperative sources at (a) Interest rate. The interest rate will are covered by an acceptable fidelity reasonable rates and terms for loans for be fixed for the term of the loan. The bond; similar purposes and periods of time is rate will be established by FSA, based (h) Evidence of acceptable liability not available; and upon the cost of Government borrowing insurance policies; (6) Have the legal authority to pledge for instruments on terms similar to that (i) Statement from the applicant producer assessments as collateral for of the loan requested, and the impact of addressing any current or pending loans from FSA. interest rate spreads on the amount to be litigation against the applicant as well (b) Individual producers are not charged to the program subsidy account as any existing judgements; eligible for loans. at the time the loan is obligated. (j) A copy of a resolution passed by (b) Term. The loan term will be based the Board of Directors authorizing the § 1941.976 Eligible loan purposes. upon the needs of the applicant to officers to incur debt on behalf of the (a) Loan funds may be used for any accomplish the objectives of the loan borrower; purpose directly related to boll weevil program and the impact of the loan term (k) Any other information deemed to eradication activities, including, but not on total program costs charged to the be necessary by FSA to render a limited to: program subsidy account at the time of decision. (1) Purchase or lease of supplies and loan obligation, as determined by FSA, equipment; § 1941.987 [Reserved] (2) Operating expenses, including but but may not exceed 10 years. § 1941.988 Funding applications. not limited to, travel and office (c) Security requirements. (1) Loans operations; must be adequately secured as Loan requests will be processed based (3) Salaries and benefits; determined by FSA. FSA may require on the date FSA receives the (b) Loan funds may not be used to pay certain security including, but not application. Loan approval is subject to expenses incurred for lobbying, public limited to the following: the availability of funds. However, relations, or related activities, or to pay (i) Assignments of assessments, taxes, when multiple applications are received interest on loans from the Agency. levies, or other sources of revenue as on the same date and available funds authorized by State law; will not cover all applications received, § 1941.977 Environmental requirements. (ii) Investments and deposits of the applications from active eradication No loan will be made until all Federal applicant; and areas, which FSA determines to be most and state statutory and regulatory (iii) Capital assets or other property of critical for the accomplishment of environmental requirements have been the applicant or its members. program objectives, will be funded first. complied with. (2) In those cases in which FSA and § 1941.989 Loan closing. § 1941.978 Non-discrimination another lender will hold assignments of the same revenue as collateral, the other (a) Conditions. The applicant must requirements. meet all conditions specified by the loan No recipient of a boll weevil lender must agree to a prorated distribution of the assigned revenue approval official in the notification of eradication loan will directly, or loan approval prior to closing. through contractual or other based upon the proportionate share of the applicant’s debt the lender holds for (b) Loan instruments and legal arrangement, subject any person or documents. The borrower, through cause any person to be subjected to the eradication zone from which the revenue is derived at the time of loan authorized representatives will execute discrimination on the basis of race, all loan instruments and legal religion, color, national origin, gender, closing. (d) Repayment. The applicant must documents required by FSA to evidence or other prohibited basis. Borrowers the debt, perfect the required security must comply with all applicable Federal demonstrate that income sources will be sufficient to meet the repayment interest in property and assets securing laws and regulations regarding equal the loan, and protect the Government’s opportunity in hiring, procurement, and requirements of the loan and pay operating expenses. interest, in accordance with applicable related matters. State and Federal laws. § 1941.979 Other Federal, State, and local § 1941.981±1980.985 [Reserved] (c) Loan agreement. A loan agreement requirements. between the borrower and FSA will be § 1941.986 Application. (a) In addition to the specific required. The agreement will set forth A complete application will consist of requirements in this subpart, loan performance criteria and other loan the following: applications will be coordinated with requirements necessary to protect the all appropriate Federal, State, and local (a) An application for Federal Government’s financial and agencies. assistance (available in any FSA office); programmatic interest and accomplish (b) Borrowers are required to comply (b) Applicant’s financial projections the objectives of the loan. Specific with all applicable: including a cashflow statement showing provisions of the agreement will be (1) Federal, State, or local laws; the plan for loan repayment; developed on a case-by-case basis to (2) Regulatory commission rules; and (c) Copies of the applicant’s address the particular situation (3) Regulations which are presently in authorizing State legislation and associated with the loan being made. existence, or which may be later organizational documents; However, all loan agreements will adopted including, but not limited to, (d) List of all directors and officers of include at least the following those governing the following: the applicant; provisions: (i) Borrowing money, pledging (e) Copy of the most recent audited (1) The borrower must submit audited security, and raising revenues for financial statements along with updates financial statements to FSA at least repayment of debt; through the most recent quarter; annually; Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26921

(2) The borrower will immediately (d) Default. In the event of default, Among the assets specified in the Bank notify FSA of any adverse actions such FSA will take all appropriate actions to Act are ‘‘deposits in banks or trust as: protect its interest. companies.’’ Id. 1431(g)(2). (i) Anticipated default on FSA debt; (ii) Potential recall vote of an Signed at Washington, D.C., on May 12, In 1978, the Finance Board’s 1997. assessment referendum; or predecessor, the former Federal Home (iii) Being named as a defendant in Dallas R. Smith, Loan Bank Board (FHLBB), defined by litigation; Acting Under Secretary for Farm and Foreign regulation the phrase ‘‘deposits in banks (3) Submission of other specific Agricultural Services. or trust companies’’ to include a deposit financial reports for the borrower; [FR Doc. 97–12837 Filed 5–15–97; 8:45 am] in another FHLBank, a demand account (4) The right of deferral under 7 BILLING CODE 3410±05±P with a Federal Reserve Bank, or a U.S.C. 1981a; and (5) Applicable liquidation procedures deposit in a depository designated by a upon default. FHLBank’s board of directors that is a (d) Fees. The borrower will pay all FEDERAL HOUSING FINANCE BOARD member of either the Federal Reserve fees for recording any legal instruments System or the Federal Deposit Insurance 12 CFR Parts 931 and 934 determined to be necessary and all Corporation (FDIC).See 43 FR 46835, notary, lien search, and similar fees [No. 97±38] 46836 (Oct. 11, 1978), codified at 12 incident to loan transactions. No fees RIN 3069±AA63 CFR 521.5 (superseded). When Congress will be assessed for work performed by abolished the FHLBB in 1989,see FSA employees. Technical Amendment to Definition of Financial Institutions Reform, Recovery, § 1941.990 Loan monitoring. Deposits in Banks or Trust Companies and Enforcement Act of 1989, Pub. L. 101–73, sec. 401, 103 Stat. 183 (Aug. 9, (a) Annual and periodic reviews. At AGENCY: Federal Housing Finance 1989), the Finance Board transferred the least annually, the borrower will meet Board. definition, without any change in with FSA representatives to review the ACTION: Final rule. financial status of the borrower, assess substantive or technical matters, to the progress of the eradication program SUMMARY: The Federal Housing Finance § 931.5 of its regulations. See 54 FR utilizing loan funds, and identify any Board (Finance Board) is amending the 36757 (Aug. 28, 1989), codified at 12 potential problems or concerns. definition of the term ‘‘deposits in banks CFR 931.5. This definition remained (b) Performance monitoring. At any or trust companies’’ to expressly include unchanged until September 1996, when time FSA determines it necessary, the a deposit in, or a sale of federal funds the Finance Board adopted a final rule borrower must allow FSA or its to, a branch or agency of a foreign bank making clear that the term ‘‘banks’’ representative to review the operations located in the United States that is includes savings associations and and financial condition of the borrower. subject to the supervision of the Board including federal funds transactions as This may include, but is not limited to, of Governors of the Federal Reserve eligible to fulfill the liquidity field visits, and attendance at System (Board of Governors), as an requirement imposed on the FHLBanks Foundation Board meetings. Upon FSA investment eligible to fulfill the by section 11(g) of the Bank Act. See 61 request, a borrower must submit any liquidity requirement imposed on the FR 40311 (Aug. 2, 1996), codified at 12 financial or other information within 14 Federal Home Loan Banks (FHLBanks) CFR 931.5. In February 1997, the days unless the data requested is not by section 11(g) of the Federal Home available within that timeframe. Finance Board published for comment Loan Bank Act (Bank Act). an interim final rule, which became § 1941.991 Loan servicing. EFFECTIVE DATE: The final rule will effective upon publication, modifying (a) Advances. FSA may make become effective on May 16, 1997. the definition of ‘‘deposits in banks or advances to protect its financial FOR FURTHER INFORMATION CONTACT: trust companies’’ to include a deposit interests and charge the borrower’s Janice A. Kaye, Attorney-Advisor, Office in, or a sale of federal funds to, a branch account for the amount of any such of General Counsel, 202/408–2505, or or agency of a foreign bank located in advances. Julie Paller, Senior Financial Analyst, the United States that is subject to the (b) Payments. Payments will be made Office of Policy, 202/408–2842, Federal supervision of the Board of Governors. to FSA as set forth in loan agreements Housing Finance Board, 1777 F Street, See 62 FR 6860 (Feb. 14, 1997). The 30- and debt instruments. The funds from N.W., Washington, D.C. 20006. extra payments will be applied entirely day public comment period closed on to loan principal. Extra payments will SUPPLEMENTARY INFORMATION: March 17, 1997.See id. The one not extend the time for the next I. Statutory and Regulatory Background comment received in response to the scheduled payment. Funds from other interim final rule is discussed in Part II Under section 11(e)(1) of the Bank of the SUPPLEMENTARY INFORMATION. payments will be applied first to any Act, the FHLBanks have the power to advances, then to accrued interest, and accept deposits from their members, II. Analysis of Public Comments and when all accrued interest is paid, the other FHLBanks, or instrumentalities of the Final Rule remainder of the payment will be the United States. See 12 U.S.C. applied to loan principal. 1431(e)(1). To ensure that each For the reasons set forth in detail in (c) Restructuring. FSA may FHLBank has sufficient liquid assets to the interim final rulemaking, the restructure loan debts; provided: Finance Board believes that all U.S. (1) the Government’s interest will be meet deposit withdrawal demands, branches and agencies of foreign banks protected, section 11(g) of the Bank Act imposes a (2) the restructuring will be performed liquidity requirement. See id. 1431(g). should be treated equally, which was within FSA budgetary restrictions, and The liquidity requirement provides that not the case under the prior rule. (3) the loan objectives cannot be met each FHLBank must invest, upon such Accordingly, the Finance Board is unless the loan is restructured. The terms and conditions as the Finance adopting the amendments to the provisions of part 1951, subpart S are Board may prescribe, an amount equal definition of ‘‘deposits in banks or not applicable to loans made under this to the current deposits the FHLBank trusts’’ made by the interim final rule section. holds in specified types of as sets. Id. without substantive change. In addition, 26922 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations as part of its ongoing regulatory little benefit, and the absence thereof PART 934ÐOPERATIONS OF THE reorganization, the Finance Board is would pose little additional risk, to the BANKS redesignating the definition to part 934 FHLBanks. of its regulations, which concerns the 1. Revise the authority citation for operations of the FHLBanks.See 12 CFR III. Notice and Public Participation part 934 to read as follows: part 934. The Finance Board finds that the Authority: 12 U.S.C. 1422a, 1422b, 1431(g), As amended, the definition of the and 1442. notice and comment procedure required term ‘‘deposits in banks or trusts’’ by the Administrative Procedure Act is includes FHLBank deposits in any U.S. §§ 934.4 through 934.14 [Redesignated as unnecessary, impracticable, and §§ 934.5 through 934.15] branch or agency of a foreign bank that contrary to the public interest in this has legal authority to accept deposits or 2. Redesignate §§ 934.4 through instance because the changes made by engage in federal funds transactions as 934.14 as §§ 934.5 through 934.15, eligible investments for purposes of the final rule are technical in nature and respectively. apply only to the FHLBanks. See 5 section 11(g) of the Bank Act. To § 931.5 [Redesignated as § 934.4] achieve this result, the Finance Board U.S.C. 553(b)(3)(B). In addition, as 3. Redesignate § 931.5 as § 934.4 and has added a new paragraph (c)(3) that explained above, the changes made by revise to read as follows: includes expressly a deposit in, or the final rule are necessary to comply federal funds transactions with, a U.S. with various provisions of federal law. § 934.4 Deposits in banks or trust branch or agency of a foreign bank that IV. Effective Date companies. is subject to the supervision of the For purposes of section 11(g) of the Board of Governors and is designated by For the reasons stated in part III Act, the term ‘‘deposits in banks or trust a FHLBank’s board of directors. The above, the Finance Board for good cause companies’’ means: terms ‘‘branch,’’ ‘‘agency,’’ and ‘‘foreign finds that the interim final rule should (a) A deposit in another Bank; bank’’ have the same meaning as in the become effective on May 16, 1997. See (b) A demand account in a Federal International Banking Act of 1978, as 5 U.S.C. 553(d)(3). Reserve Bank; and amended. See 12 U.S.C. 3101 (1), (3), (c) A deposit in, or a sale of federal V. Regulatory Flexibility Act (7). funds to: The commenter urged the Finance The Finance Board is adopting the (1) An insured depository institution, Board to encourage the FHLBanks to technical amendment in the form of a as defined in section 2(12)(A) of the Act, place deposits with small, domestic final rule and not as a proposed rule. that is designated by a Bank’s board of FDIC-insured financial institutions Therefore, the provisions of the directors; rather than U.S. branches and agencies Regulatory Flexibility Act do not apply. (2) A trust company that is a member of foreign banks in order to provide See 5 U.S.C. 601(2), 603(a). of the Federal Reserve System or these community banks with needed insured by the Federal Deposit liquidity and to facilitate the FHLBanks’ VI. Paperwork Reduction Act Insurance Corporation, and is mission of extending credit for housing designated by a Bank’s board of in the United States. Because provisions This final rule does not contain any directors; or of federal law require the treatment of collections of information pursuant to (3) A U.S. branch or agency of a all U.S. branches and agencies of foreign the Paperwork Reduction Act of 1995. foreign bank, as defined in the banks to be similar to the treatment of See 44 U.S.C. 3501, et seq. International Banking Act of 1978, as domestic depository institutions, the Consequently, the Finance Board has amended (12 U.S.C. 3101 et seq.), that Finance Board believes that the not submitted any information to the is subject to the supervision of the amendment permitting FHLBank Office of Management and Budget for Board of Governors of the Federal deposits in U.S. branches and agencies review. Reserve System, and is designated by a of foreign banks is consistent with List of Subjects Bank’s board of directors. federal law. The commenter also suggested that placing deposits in By the Board of Directors of the Federal 12 CFR Part 931 Housing Finance Board. uninsured U.S. branches and agencies of foreign banks might create additional Banks, Banking, Federal home loan Bruce A. Morrison, unnecessary risk for the FHLBanks. As banks. Chairperson. [FR Doc. 97–12550 Filed 5–15–97; 8:45 am] pointed out in the interim final 12 CFR Part 934 rulemaking, a foreign bank may BILLING CODE 6725±01±U establish a U.S. branch or agency only Federal home loan banks, Securities, with the prior approval of the Board of Surety bonds. Governors and an appropriate licensing DEPARTMENT OF COMMERCE authority, i.e., either the Comptroller of Accordingly, the Federal Housing the Currency or a state banking Finance Board hereby adopts the Bureau of Export Administration regulator, and such branches and interim final rule amending 12 CFR part agencies are subject to the supervision 931 that was published at 62 FR 6860 15 CFR Part 744 of the Board of Governors and must on February 14, 1997 as a final rule with [Docket No. 970428099±7099±01] meet many of the rules and regulations, the following changes, and amends 12 including safety and soundness rules CFR part 934 of the Code of Federal RIN 0694±AB60 Regulations as follows: and regulations, applicable to domestic Revisions to the Export Administration commercial banks. In addition, because PART 931ÐDEFINITIONS Regulations: Addition of Bharat FHLBank deposits generally exceed the Electronics, Ltd., (aka Baharat $100,000 FDIC deposit insurance limit, Electronics, Ltd.) India, to Entity List and U.S. branches of foreign banks 1. Revise the authority citation for principally accept only wholesale part 931 to read as follows: AGENCY: Bureau of Export deposits, FDIC insurance would be of Authority: 12 U.S.C. 1422a and 1422b. Administration, Commerce. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26923

ACTION: Final rule. other law requires that a notice of SECURITIES AND EXCHANGE proposed rulemaking and an COMMISSION SUMMARY: The Export Administration opportunity for public comment be Regulations (EAR) provide that the given for this final rule. Because a 17 CFR Part 270 Bureau of Export Administration (BXA) notice of proposed rulemaking and an may inform exporters, individually or [Release Nos. IC±22658; IS±1080; File No. opportunity for public comment are not through amendment to the EAR, that a S7±23±95] required to be given for this rule under license is required for exports or RIN 3235±AE98 reexports to certain entities. The EAR 5 U.S.C. 553 or by any other law, the contains a list of such entities. This rule requirements of the Regulatory Custody of Investment Company adds Bharat Electronics LTD, (aka Flexibility Act (5 U.S.C. 601 et seq.) are Assets Outside the United States Baharat Electronics, Ltd.) located in not applicable. AGENCY: Securities and Exchange India, to the entity list, and requires a Therefore, this regulation is issued in Commission. license for exports or reexports of all final form. Although there is no formal items subject to the EAR. comment period, public comments on ACTION: Final rule. EFFECTIVE DATE: This rule is effective this regulation are welcome on a SUMMARY: The Commission is adopting May 16, 1997. continuing basis. Comments should be amendments to the rule under the FOR FURTHER INFORMATION CONTACT: submitted to Sharron Cook, Regulatory Investment Company Act of 1940 that Eileen M. Albanese, Office of Exporter Policy Division, Bureau of Export governs the custody of investment Services, Bureau of Export Administration, Department of company assets outside the United Administration, Telephone: (202) 482– Commerce, P.O. Box 273, Washington, States. The amendments provide 0436. DC 20044. investment companies with greater flexibility in managing their foreign SUPPLEMENTARY INFORMATION: List of Subjects in 15 CFR Part 744 custody arrangements consistent with Background Exports, Foreign trade, Reporting and the safekeeping of investment company General Prohibition Five (§ 736.2(b)(5) recordkeeping requirements. assets. The amendments also expand the of the EAR) prohibits exports to certain class of foreign banks and securities end-users or end-uses without a license. Accordingly, part 744 of the Export depositories that may serve as In the form of Supplement No. 4 to part Administration Regulations (15 CFR investment company custodians. 744, BXA maintains an ‘‘Entity List’’ to parts 730–774) is amended, as follows: EFFECTIVE DATE: The amendments will provide notice informing the public of 1. The authority citation for 15 CFR become effective June 16, 1997. certain entities subject to such licensing part 744 continues to read as follows: FOR FURTHER INFORMATION CONTACT: requirements. Authority: 50 U.S.C. app. 2401 et seq.; 50 Robin S. Gross, Staff Attorney, or Nadya Although the Export Administration U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; B. Roytblat, Assistant Chief, Office of Act (EAA) expired on August 20, 1994, 42 U.S.C. 2139a; E.O. 12058, 43 FR 20947, 3 Regulatory Policy, at (202) 942–0690, the President invoked the International CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR Securities and Exchange Commission, Emergency Economic Powers Act and 33181, 3 CFR, 1993 Comp., p. 608; E.O. Division of Investment Management, continued in effect, to the extent 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 450 Fifth Street, N.W., Mail Stop 10–2, permitted by law, the provisions of the 917; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Washington, D.C. 20549. Requests for EAA and the EAR in Executive Order Comp., p. 950; Notice of August 15, 1995 (60 formal interpretive advice should be 12924 of August 19, 1994. FR 42767, August 17, 1995); and Notice of directed to the Office of Chief Counsel Rulemaking Requirements August 14, 1996 (61 FR 42527). at (202) 942–0659, Division of Investment Management, Securities and 1. This final rule has been determined PART 744Ð[AMENDED] Exchange Commission, 450 Fifth Street, to be not significant for purposes of N.W., Mail Stop 10–6, Washington, D.C. Executive Order 12866. 2. Supplement No. 4 to part 744 is 20549. 2. Notwithstanding any other amended by adding, in alphabetical SUPPLEMENTARY INFORMATION: The provision of law, this rule involves a order, the following entity: collection of information subject to the Securities and Exchange Commission Paperwork Reduction Act of 1980 (44 ‘‘Bharat Electronics LTD, (aka Baharat (‘‘Commission’’) today is adopting U.S.C. 3501 et seq.). This collection has Electronics, Ltd.) located in India, for all amendments to rule 17f–5 (17 CFR been approved by the Office of items subject to the EAR’’. 270.17f–5) under the Investment Management and Budget under control Dated: May 12, 1997. Company Act of 1940 (15 U.S.C. 80a) number 0694–0088. (the ‘‘Investment Company Act’’ or Iain S. Baird, ‘‘Act’’). 3. This rule does not contain policies Acting Assistant Secretary for Export with Federalism implications sufficient Administration. Table of Contents to warrant preparation of a Federalism [FR Doc. 97–12805 Filed 5–15–97; 8:45 am] I. Executive Summary assessment under Executive Order II. Introduction and Background BILLING CODE 3510±33±P 12612. III. Discussion 4. The provisions of the A. Decision to Place Fund Assets in a Administrative Procedure Act (5 U.S.C. Country 553) requiring notice of proposed 1. Background rulemaking, the opportunity for public 2. Amended Rule B. Delegation of Board Responsibilities participation, and a delay in effective 1.Selecting Delegates date, are inapplicable because this 2. Delegate’s Standard of Care regulation involves a military and 3. Board Oversight; Delegate Reporting foreign affairs function of the United C. Selecting, Contracting with, and States (5 U.S.C. 553(a)(1)). Further, no Monitoring a Foreign Custodian 26924 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations

1. Selecting a Foreign Custodian select a foreign custodian and monitor In 1984 the Commission adopted rule a. General Standard a fund’s foreign custody arrangements to 17f–5, which expanded the foreign b. Specified Factors the fund’s investment adviser, officers, custody arrangements available to i. Practices, Procedures and Internal or a U.S. or foreign bank, and are no funds.5 The rule permits funds to Controls ii. Financial Strength and Reputation longer required to approve foreign maintain their assets overseas, subject to iii. Jurisdiction custody arrangements annually. detailed findings by the fund’s board of directors with respect to the decision to 2. Foreign Custody Contract II. Introduction and Background a. Indemnification and Insurance place fund assets in a particular country b. Liens A growing number of funds invest and with respect to each foreign custody c. Omnibus Accounts their assets overseas.1 Investing in arrangement.6 Fund assets may be d. Depository Arrangements foreign markets may present a fund with placed in the custody of an ‘‘eligible 3. Monitoring Custody Arrangements and significant operational issues, one of foreign custodian’’: (i) A foreign bank or Withdrawing Fund Assets which is the availability of appropriate D. Eligible Foreign Custodians trust company (‘‘foreign bank’’) that has 1. Foreign Banks and Trust Companies custodians for fund assets. Maintaining more than $200 million in shareholders’ 2. Affiliated Foreign Custodians securities outside of their primary equity; (ii) a majority-owned subsidiary 3. Securities Depositories market can add significant costs to of a U.S. bank or bank holding company E. Assets Maintained in Foreign Custody investing in that market and may (‘‘U.S. bank subsidiary’’) that has more F. Canadian Funds preclude foreign investment.2 The than $100 million in shareholders’ IV. Effective Date; Compliance Dates availability of custodial arrangements in equity; or (iii) a foreign securities V. Cost/Benefit Analysis and Effects on foreign markets where a fund invests, depository that operates either the Competition, Efficiency and Capital therefore, is very important. central system for the handling of Formation Section 17(f) of the Act generally VI. Summary of Final Regulatory Flexibility securities in that country or a Analysis permits a fund to maintain its assets transnational system for the central VII. Paperwork Reduction Act only in the custody of a U.S. bank and handling of securities.7 Finally, the VIII. Statutory Authority its foreign branches, a member of a U.S. fund’s foreign custody arrangements Text of Rule securities exchange, the fund itself, or a must be governed by a written contract U.S. securities depository.3 Before rule I. Executive Summary that must be approved by the fund’s 17f–5 was adopted, funds seeking to board of directors and contain certain The Commission is amending rule maintain their assets outside the United specified provisions.8 17f–5 under the Investment Company States could use only foreign branches By 1995 the Commission had become Act to provide registered management of U.S. banks as their foreign concerned that the rule’s provisions investment companies (‘‘funds’’) greater custodians.4 unnecessarily restricted foreign custody flexibility in managing their foreign arrangements. In addition, the custody arrangements. The amendments 1 Based on available data, the Commission staff Commission became concerned that the expand the class of foreign banks and estimates that at the end of February 1997, rule placed unnecessary burdens on securities depositories that may serve as approximately 1,666 portfolios with assets of nearly $411 billion have investment objectives that fund directors that detracted from the custodians of fund assets by eliminating contemplated significant foreign investments. See amount of time they could devote to the capital requirements that have also Karen Damato, Mutual Funds Drew $24 Billion many other important duties they are precluded funds from using otherwise During January, Wall St. J., Feb. 13, 1997, at C1 assigned under the Act.9 In July 1995, (discussing recent increased investor interest in suitable custodians without first the Commission proposed amendments obtaining administrative relief from the funds that invest overseas). 2 Moving securities away from their primary to rule 17f–5 in response to these Commission. The amended rule requires market may entail additional costs in connection concerns. To make the rule’s instead that the selection of a foreign with hiring a servicing agent in the primary locality requirements for board involvement in custodian be based on whether the to collect and disseminate information with respect custody matters more consistent with fund’s assets will be subject to to the securities, transferring the securities to an eligible custodian and procuring insurance for the board’s traditional oversight role, reasonable care if maintained by that possible loss in transit, and exchanging coupons for the proposed amendments would have custodian, after considering all factors interest or dividends or for new shares in permitted fund boards to delegate their relevant to the safekeeping of fund connection with a rights offering. See Exemption for Custody of Securities by Foreign Banks and Foreign assets, including the custodian’s 5 Securities Depositories, Investment Company Act Exemption for Custody of Investment Company financial strength, its practices and Release No. 12354 (Apr. 5, 1982) (47 FR 16341, Assets Outside the United States, Investment procedures, and internal controls. 16342 (April 16, 1982)) (hereinafter 1982 Proposing Company Act Release No. 14132 (Sept. 7, 1984) (49 The amendments eliminate the Release). Funds also may be prevented from, or FR 36080 (Sept. 14, 1984)) (release adopting rule consideration of ‘‘prevailing country delayed in, selling the securities if they are unable 17f–5) (hereinafter 1984 Adopting Release). For an to make timely delivery to prospective purchasers administrative history of rule 17f–5, see Custody of risks,’’ i.e., risks associated with in the primary market. Id. In addition, the best price Investment Company Assets Outside the United investment in a particular country for a foreign security typically may be obtained in States, Investment Company Act Release No. 21259 rather than placing assets with a its primary market. Id. (July 27, 1995) (60 FR 39592 (Aug. 2, 1995)) particular custodian. The Commission 3 15 U.S.C. 80a–17(f). Bank custodians must be (hereinafter Proposing Release) at n.8. 6 The fund’s board of directors must determine has concluded that prevailing country subject to federal or state regulation and have at least $500,000 in aggregate capital, surplus, and that the custody arrangements are consistent with risks are investment risks appropriately undivided profits. Investment Company Act the best interests of the fund and its shareholders considered by a fund’s board or sections 2(a)(5) (15 U.S.C. 80a–2(a)(5)) (defining (the ‘‘best interests determination’’). Rule 17f– investment adviser when deciding bank), and 26(a)(1) (15 U.S.C. 80a–26(a)(1)) 5(a)(1)(i) through (iii). Notes to the current rule enumerate certain factors that the fund’s board whether the fund should invest in a (containing the $500,000 capital requirement). See also rule 17f–1 (17 CFR 270.17f–1) (custody by should consider in making the best interests particular country, rather than custodial members of a U.S. securities exchange), rule 17f– determination. The rule also requires the board to risks to be addressed in rule 17f–5. 2 (17 CFR 270.17f–2) (custody by funds monitor the fund’s foreign custody arrangements The amendments also permit fund themselves), rule 17f–4 (17 CFR 270.17f–4) (custody and to approve each arrangement at least annually. Rule 17f–5(a)(2), (3). directors to play a more traditional by U.S. securities depositories), and rule 17f–6 (17 CFR 270.17f–6) (custody by futures commission 7 Rule 17f–5(c)(2) (i) through (iv). oversight role with respect to the merchants and commodity clearing organizations). 8 Rule 17f–5(a)(1)(iii) (A) through (F). custody of fund assets overseas. 4 See 1982 Proposing Release, supra note 2, at n.7 9 See Proposing Release, supra note 5, at nn.15– Directors may delegate their duties to and accompanying text. 17 and accompanying text. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26925 responsibilities to approve and monitor risks’’). For example, a country’s associated with the decision to invest in foreign custody arrangements. To better inefficient settlement practices a particular country and should be reflect modern commercial custody constitute a risk of investing in that considered by a fund’s board or practices, the proposed amendments country, regardless of the level of care investment adviser before the fund would have revised the standard to be that can be provided by a particular invests in a foreign country. Inclusion of used in evaluating a fund’s foreign custodian. Both of these types of risks prevailing country risks in rule 17f–5, custody arrangements to one that have been addressed by rule 17f–5, and therefore, would appear inconsistent focuses on whether the custodial were to be addressed by the proposed with the nature of those risks. arrangement afforded ‘‘reasonable amendments.12 The Commission also is concerned protection’’ for fund assets.10 The The Proposing Release requested that restrictions on a fund’s approach to proposed amendments also would have comment whether the rule should prevailing country risks may have the expanded the class of foreign banks, continue to address prevailing country effect of denying funds and their U.S. bank subsidiaries and securities risks.13 A number of commenters shareholders overseas investment depositories that could serve as fund suggested that it should not. These opportunities, particularly in custodians, and eliminated the commenters asserted that prevailing developing markets. Such a result is requirement that the fund’s foreign country risks are inherently investment inconsistent with the overall approach custody contract contain certain risks because they are an inextricable of the Investment Company Act, which specified provisions. part of the fund’s decision to invest in generally does not limit a fund’s ability The Commission received letters from foreign securities. These commenters to assume investment risks.14 Moreover, 28 commenters. The commenters therefore urged the Commission to treat such a result is not mandated by section generally supported the proposed the decision to place fund assets in a 17(f), the legislative history of which amendments, particularly those country as a decision to be made by the suggests that the section was intended provisions that would have permitted a fund’s board or its investment adviser in primarily to prevent misappropriation fund’s board to delegate its the context of deciding to invest in that of fund assets by persons having access responsibilities to select and monitor country, and as separate from the to assets of the fund.15 foreign custodians to the fund’s establishment of particular foreign Based upon these considerations, the investment adviser, officers, or a U.S. or custody arrangements under rule 17f–5. Commission has decided not to address foreign bank. The Commission is prevailing country risks in rule 17f–5. adopting the proposed amendments 2. The Amended Rule Rather, the Commission believes that with several modifications that reflect, These comments have caused the such risks should be carefully in part, the commenters’ suggestions. Commission to reconsider the proposed considered by a fund’s board or its The Commission believes that the approach. Once a decision has been investment adviser before the fund amendments, as adopted, will provide made to invest in a country, prevailing invests in a foreign country, and, if significant additional flexibility for country risks cannot be avoided, except material, disclosed to fund investors.16 funds without reducing the level of by maintaining assets outside of the Accordingly, the amended rule focuses investor protection afforded by the country—an alternative that is often not exclusively on the selection and current rule. possible or practicable. For that reason, monitoring of an eligible foreign custodian. III. Discussion prevailing country risks would seem inherently a part of the investment risks The amendments are not intended A. Decision to Place Fund Assets in a and should not be construed, however, Country 12 Rule 17f–5 currently requires a fund’s board of to diminish the importance of directors to determine that maintaining the fund’s considering the financial infrastructure 1. Background assets in a particular country is consistent with the of a foreign country when deciding to Maintaining fund assets outside the best interests of the fund and its shareholders. Rule 17f–5(a)(1)(i). Note 1 to the rule requires the board, invest in that country. For example, the United States involves risks that relate in making this determination, to consider the effects country’s settlement systems and to the particular custodian (e.g., the risk of applicable foreign law on the safekeeping of fund practices can have a significant effect on that the custodian selected will not assets; the likelihood of expropriation, the liquidity and investment exercise the appropriate level of care nationalization, freezing, or confiscation of the 17 fund’s assets; and any reasonably foreseeable characteristics of fund assets. The with regard to fund assets, or that the difficulties in repatriating the fund’s assets kept custodian may not have the financial overseas. 14 But see, e.g., rule 2a–7 under the Investment strength, practices, and procedures in The proposed amendments would have narrowed Company Act (17 CFR 270.2a–7) (establishing place to safeguard the fund’s assets).11 the scope of the prevailing country risks various limitations on permissible investments for determination to factors that have a closer nexus to money market funds). In addition, maintenance of fund assets safekeeping considerations. A fund’s board of 15 See Proposing Release, supra note, at n.5; overseas exposes the fund to systemic directors or its delegate would have been required Thomas Harman, Eligible Foreign Custodians and risks that may affect the ability of any to determine that custody of the fund’s assets in a the Investment Company Act of 1940, 46 Bus. Law custodian to safeguard fund assets in particular country could be maintained in a manner 1377 (1991). that provided reasonable protection for the fund’s 16 Funds’ disclosure obligations are governed by that country (‘‘prevailing country assets after considering all factors relevant to the other provisions of the securities laws. See, e.g., safekeeping of such assets including: (i) The Item 4(c) of Form N–1A (17 CFR 239.15A) (the 10 The factors that the rule specifies should be prevailing practices in the country for the custody registration form for open-end funds), and Item 8.3 considered in this regard would have been revised of the fund’s assets; (ii) whether the country’s laws of Form N–2 (17 CFR 274.11a–1) (the registration to focus on safekeeping rather than investment risks will affect adversely the safekeeping of the fund’s form for closed-end funds). These Items require (particularly the factors relating to the decision to assets, such as by restricting the access of the fund’s disclosure in the fund’s prospectus of the principal place fund assets in a country). independent public accountants to a custodian’s risk factors associated with investing in the fund. 11 These issues also may be present when a fund’s books and records, or by affecting the fund’s ability See also Proposing Release, supra note, at nn.175, assets are maintained in the United States. Section to recover its assets in the event of a custodian’s 176 and accompanying text. 17(f), however, by limiting domestic custody bankruptcy or the loss of assets in a custodian’s 17 A country’s settlement systems, for example, arrangements to U.S. banks and certain other control; and (iii) whether special arrangements that may not require that payment for securities arrangements subject to Commission regulation, mitigate the risks of maintaining the fund’s assets purchased by a fund be made only upon delivery provides some assurance that custody arrangements in the country would be used. of those securities, or that securities sold by a fund will have appropriate safeguards. See supra note 3 13 Proposing Release, supra note 5, at nn. 62–65 be delivered only upon receipt of payment for the and accompanying text. and accompanying text. Continued 26926 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations

amendments similarly are not intended B. Delegation of Board Responsibilities foreign custody arrangements. Most to diminish the contribution that the The Commission proposed amending commenters that addressed this aspect fund’s global custodian may make in the rule to permit a fund’s board to of the proposal supported the proposed deciding to place fund assets in a delegate its responsibilities to select, standard, but suggested that the 18 foreign country. Commenters contract with, and monitor foreign Commission discuss the factors to be representing funds and custodians custodians to the fund’s investment considered in determining whether agreed that global custodians are a adviser, officers or a U.S. or foreign reliance on a delegate is reasonable. ‘‘primary source of information bank. This approach was intended to The Commission is adopting the concerning the financial systems and permit fund boards to play a more proposed reasonable reliance 19 24 practices of foreign markets.’’ The traditional oversight role in connection standard. As stated in the Proposing Commission, therefore, expects that with a fund’s foreign custody Release, factors typically involved in fund boards and investment advisers, in arrangements.21 This approach also making this determination include the making foreign investment decisions, sought to recognize that in discharging expertise of the delegate and, if will continue to seek and rely on their responsibilities under the rule, applicable, the delegate’s intended use information and opinions provided by of third party experts in performing its directors rely heavily on the analysis 25 the fund’s custodian when the and recommendations of the fund’s responsibilities. Other relevant factors custodian has experience with regard to investment adviser, legal counsel and may include, for example, the board’s foreign custody services.20 global custodian.22 Most commenters ability to monitor the delegate’s strongly supported the proposed performance or, in the case of a delegate securities (‘‘delivery vs. payment procedures’’). amendments permitting delegation of that is a foreign bank, the fund’s ability Delivery vs. payment procedures can afford to obtain jurisdiction over the delegate significant protections from losses if the other party board responsibilities and they are 23 in the U.S. should problems arise in the to a transaction defaults on its obligations. See, e.g., adopted substantially as proposed. 26 Group of Thirty, Clearance and Settlement Systems delegate’s performance of its duties. in the World’s Securities Markets 11 (Mar. 1989). 1. Selecting Delegates The delegate’s financial strength also is The fact that a foreign market’s settlement practices Under the proposed amendments, the relevant in analyzing its ability to do not incorporate these procedures should be perform its responsibilities and carefully considered by the fund’s board or board would have been required to find investment adviser in deciding to invest in the that it is reasonable to rely on the indemnify the fund if the delegate fails country. delegate to perform the delegated to adhere to the requisite standard of A country’s settlement systems and practices also responsibilities related to the fund’s care.27 may present problems in accounting for fund assets Certain commenters suggested that (e.g, establishing whether the fund owns the the board’s responsibilities under the securities or has received dividends or other and fiduciary law. See, e.g., Task Force on the Fund entitlements). See, e.g., Buttonwood International Director’s Guidebook, Federal Regulation of rule be delegable solely to the fund’s Group, Emerging Markets on the Net: India- Securities Committee, Section of Business Law, custodian bank as the entity most Securities Infrastructure a Big Problem for American Bar Association, ‘‘Fund Director’s Guidebook,’’ 52 Bus. Law. 229, 237 (1996) qualified to provide such services. The Investors, at http://www.buttonwood.com/p–i/ (‘‘Compliance with the duty of care under state law Commission continues to believe that 1996es/india.html (discussing, among other things, is based on diligence applied to the ordinary and difficulties resulting from the process of registering the board should have the flexibility to extraordinary needs of the fund, including * ** changes in ownership of securities). obtaining and reviewing information on which to 18 24 Amended rule 17f–5(b)(1) (17 CFR 270.17f– See, e.g., John Paul Lee & Richard Schwartz, base decisions, and making appropriate inquiries 5(b)(1)). Global Custody: A Guide for the Nineties (1990) under particular circumstances.’’) The Commission 25 (noting that today the safekeeping of a fund’s does not believe that the amendments will See Proposing Release, supra note 5, at n.28 foreign investments typically is effected through the discourage fund boards and investment advisers and accompanying text. fund’s primary or ‘‘global’’ custodian, which uses from seeking the type of information they need to 26 If the delegate is a foreign bank, it must be a a world-wide network of custodians with which it fulfill their responsibilities. Cf. Letter from State ‘‘qualified foreign bank’’ (i.e., regulated as either a has established relationships); Gordon Altman Street Bank to Jonathan G. Katz, Secretary, banking institution or trust company by the Butowsky Weitzen Shalov & Wein, a Practical Securities and Exchange Commission (Nov. 3, government of the country under whose laws it is Guide to the Investment Company Act 30 (1993) 1995), File No. S7–23–95, at 11 (suggesting that organized or any agency thereof). See amended rule (indicating that the fund’s custodian typically ‘‘competitive forces’’ may place incentives on 17f–5(d)(6) (17 CFR 270.17f–5(d)(6)). U.S. bank provides the board with information concerning custodian banks to assume greater responsibility for delegates must be subject to federal or state foreign legal restrictions and the qualifications of decisions to place fund assets in foreign countries). regulation by virtue of the definition of bank in foreign custodians). The amendments do not affect in any way the section 2(a)(5) of the Act (15 USC 80a–2(a)(5)). 19 Letter from Baker & McKenzie to Jonathan G. extent to which a custodian’s opinions and reports 27 The amendments, as proposed, would have Katz, Secretary, Securities and Exchange may be relied upon by the fund’s board or the required a U.S. bank delegate to have an aggregate Commission (Nov. 3, 1995), File No. S7–23–95, at investment adviser, or the custodian’s legal liability of capital, surplus and undivided profits (‘‘CSP’’) of 7–8; see also Letter from the Investment Company to the fund with respect to any such opinions or $500,000—the aggregate CSP required for a U.S. Institute to Jonathan G. Katz, Secretary, Securities reports. bank to serve as a custodian for fund assets. See and Exchange Commission (Oct. 5, 1995), File No. 21 See Proposing Release, supra note 5, at nn.24– section 17(f)(1) of the Act (15 U.S.C. 80a–17(f)(1)) S7–23–95, at 9. Custodian commenters suggested 26 and accompanying text. (requiring bank custodians to meet the that their role in this regard may expand under the 22 See supra notes 18–20 and accompanying text. qualifications prescribed by section 26(a) of the Act amended rule and emphasized that funds and their See also, Glorianne Stromberg, Regulatory (15 U.S.C. 80a–26(a)) for the trustees of unit global custodians ‘‘are partners, not adversaries, in Strategies for the Mid-’90s; Recommendations for investment trusts). The Proposing Release requested seeking to ensure that fund assets held outside the Regulating Investment Funds in Canada (prepared comment whether foreign bank delegates should United States are properly safeguarded.’’ Letters for the Canadian Securities Administrators) 242 meet specific capital standards. Commenters were from Baker & McKenzie to Jonathan G. Katz, (Jan. 1995) (suggesting it is unlikely that an divided on this point. One commenter supported a Secretary, Securities and Exchange Commission individual fund or its investment adviser will have minimum capital requirement for foreign bank (June 7, 1996 and Sept. 10, 1996), File No. S7–23– the expertise or bargaining power to deal with delegates to avoid the inequity of subjecting only 95, at 3 and 2, respectively. numerous and varied foreign custodians throughout U.S. banks to minimum capital requirements. Other 20 The Commission always has recognized the the world). commenters suggested that, since the financial extent to which fund boards rely on third party 23 While commenters generally supported strength of a foreign custodian would be a factor in experts in addressing prevailing country risks. See delegation, a number of commenters suggested that deciding to use it as a custodian for fund assets, the 1984 Adopting Release, supra note 5, at n.12 and custodian banks should not serve as delegates for aggregate CSP requirement, or other minimum accompanying text. The failure of a fund’s board to the decision to place fund assets in a country. It is financial standards for delegates, were unnecessary. obtain information from reliable sources concerning not necessary to address this issue in the amended Consistent with the approach of focusing on the financial systems and practices of foreign rule, however, because the decision to place fund financial strength, rather than specified minimum markets in which the fund makes significant assets in the country is outside the scope of the capital (as discussed in Section III.D.1 of this investments may in certain instances violate the amended rule. See supra Section III.A. of this Release), the amended rule does not require a U.S. directors’ duty of care under applicable corporate Release. bank delegate to have a specified CSP. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26927 delegate foreign custody decisions to the liable for losses despite exercising provision should provide fund boards entity it determines is in the best reasonable care. with the flexibility to tailor the position to evaluate the particular The amended rule requires a delegate reporting requirements to the fund’s delegated aspects of the fund’s foreign to exercise reasonable care in particular circumstances. Consistent custody arrangements.28 For example, performing the delegated duties.30 The with the provision, a fund’s board under the delegation provisions of the rule makes clear that reasonable care, in could, for example, require the reports amended rule, one delegate may assume this context, requires the delegate to at the next regularly scheduled board responsibility for evaluating bank exercise the care, prudence and meeting, as originally proposed. The custodians, while another may be diligence that a person having the board also may require the reports more responsible for evaluating depositories. responsibility for the safekeeping of or less frequently (e.g., within 30, 60 or The Commission notes that the terms fund assets would exercise.31 This 90 days of the event or annually) as the of the delegation must be agreed upon provision is designed to ensure that board determines is reasonable and by the board and the delegate. The delegates adhere to a threshold standard appropriate. potential delegate must agree to assume of care. Fund boards and their delegates may agree that the delegate should C. Selecting, Contracting With, and the delegated responsibilities and the Monitoring a Foreign Custodian delegate and the fund’s board may agree adhere to a higher standard of care. to guidelines and procedures under 3. Board Oversight; Delegate Reporting 1. Selecting a Foreign Custodian which the delegate will exercise its The Commission is amending the a. General Standard responsibilities. If a foreign country, for rule, as proposed, to no longer require Rule 17f–5 currently requires a fund’s example, has a depository that, as a the board to review or approve the board to find that the fund’s foreign practical matter, must be used if the fund’s foreign custody arrangements custody arrangements are consistent fund is going to place assets in that annually. The amended rule does with the best interests of the fund and country (‘‘compulsory depository’’), the require the delegate to provide the board its shareholders.35 Consistent with the fund’s board may conclude that the with written reports notifying it of the goal of requiring foreign custody investment adviser would be the placement of the fund’s assets with a arrangements to be evaluated based on appropriate delegate for evaluating the 32 29 particular custodian. The delegate also the level of safekeeping they will afford compulsory depository. must provide written reports to the fund assets, the Commission proposed 2. Delegate’s Standard of Care board concerning any material change amending the rule to require a finding in the fund’s foreign custody that the fund’s foreign custody The Proposing Release requested arrangements (‘‘material change arrangement will provide ‘‘reasonable comment whether the rule should reports’’).33 These reports are intended protection’’ for fund assets. The provide a standard of care to be used by to facilitate the board’s oversight of the proposed reasonable protection a delegate in making custodial delegate’s performance. Commenters standard was intended to facilitate decisions. Several commenters generally agreed that delegate reporting evaluation of foreign custody suggested that the rule should provide is desirable. arrangements by focusing exclusively on guidance in this regard. These The proposed amendments would the safekeeping of fund assets. commenters expressed the view that if have required the reports to be provided Several commenters viewed the the Commission did not clarify this no later than the next regularly proposed reasonable protection aspect of the amendments, the scheduled board meeting following the standard as a results-oriented standard delegation provisions would be event necessitating the report. One that could effectively render the entity unworkable because potential delegates commenter expressed concerns about making the determination a guarantor would be unwilling to risk being held the application of this requirement to against any loss of fund assets in foreign fund boards that do not have regularly custody. A number of commenters 28 Similarly, a fund’s board could select as scheduled meetings. The amended rule recommended that the rule require delegate the entity having the greatest expertise requires material change reports to be instead that the selection of a fund’s with a geographic region. See Andrew Sollinger, Breaking Away, Institutional Investor 171 (Sept. provided at such times as the fund’s foreign custodian be based on a 1991) (noting that U.S. custodians may use different board deems reasonable and appropriate determination that the custodian will subcustodian networks for different geographic based on the circumstances of the fund’s provide ‘‘reasonable care’’ for the fund’s regions). foreign custody arrangements.34 This assets in its custody (‘‘reasonable care 29 The amendments, as proposed, would have standard’’). The commenters suggested expressly addressed compulsory depositories, and 30 would have required the evaluation of a Amended rule 17f–5(b)(3) (17 CFR 270.17f– that this standard of care would be more compulsory depository to be made in the context 5(b)(3)). consistent with the way in which of the decision to place fund assets in that country. 31 A substantially similar standard of care was custodians traditionally have carried out suggested by fund and custodian commenters. See This approach was designed to address the their responsibilities.36 Commenters expectation that, because of the depository’s also infra note 36, (discussing a custodian’s compulsory nature, the fund’s custodian would standard of care under Article 8 of the Uniform also noted that a reasonable protection decline to assume the responsibility for evaluating Commercial Code (‘‘U.C.C.’’)). it. The Commission recognized, however, that 32 Amended rule 17f–5(b)(2) (17 CFR 270.17f– 35 Rule 17f–5(a)(2). conceptually the decision to use a compulsory 5(b)(2)). 36 For example, the newly revised Article 8 of the depository appeared to fall within the scope of the 33 Id. A material change in the fund’s U.C.C. (which has been adopted in 29 states, as of rule’s provisions governing the selection of arrangements would include, for example, a December 1996), addresses the duty of care to be particular custodians. The rule, as proposed to be delegate’s decision to remove the fund’s assets from exercised by a custodian (or other ‘‘securities amended, would have required the fund’s board or a particular custodian. A material change also could intermediary’’). Section 8–504 provides that in the its delegate to make the same findings with respect include events that may adversely affect a foreign absence of an agreement, the custodian should to a compulsory depository as those required for the custodian’s financial or operational strength, such exercise ‘‘due care in accordance with reasonable selection of any other type of foreign custodian. See as a change in control resulting from a sale of the commercial standards.’’ (Section 8–509 recognizes Proposing Release, supra note 5, at n.71. Because custodian’s operations. If appropriate, the material that regulatory law may impose a higher standard.) the amended rule does not address the decision to change report would discuss the reasons for Note 4 to Section 8–504 observes that ‘‘(the duty of place fund assets in a country, the Commission has continuing to maintain the fund’s assets with a care includes both care in the intermediaries’ own concluded that it is not necessary for the rule to particular custodian. operations and care in the selection of other distinguish between compulsory depositories and 34 Amended rule 17f–5(b)(2) (17 CFR 270.17f– intermediaries through whom the intermediary other types of foreign custodians. 5(b)(2)). holds the assets in question.’’ 26928 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations standard would suggest that the level of degree of care with respect to fund ii. Financial Strength and Reputation custodial protection that is deemed assets. ‘‘reasonable’’ would vary from fund to The amended rule requires the b. Specified Factors fund. Foreign Custody Manager to consider In proposing the reasonable The amended rule requires the whether the foreign custodian has the protection standard, the Commission Foreign Custody Manager to consider all requisite financial strength to provide 45 emphasized that the delegate would not factors relevant to the safekeeping of reasonable care for fund assets. be required to find that fund assets fund assets. The rule identifies several Particular emphasis should be placed on could never be lost while in the foreign specific factors that the Foreign Custody evaluating the custodian’s financial custodian’s possession. Instead, the Manager must consider when selecting strength, since the amended rule no focus would have been on the a foreign custodian. longer requires the foreign custodian to reasonableness of a custodian’s have a specified minimum shareholders’ i. Practices, Procedures and Internal equity.46 As noted in the Proposing protections for the fund’s assets, based Controls on all relevant factors and, in particular, Release, in considering financial those factors that would have been The amended rule states that the strength, the Foreign Custody Manager specified in the rule.37 Thus, the foreign custodian’s practices, should assess the adequacy of the proposed standard was not intended to procedures, and internal controls are custodian’s capital with a view of be substantially different than the among the factors that must be protecting the fund against the risk of reasonable care standard suggested by considered in deciding whether the loss from a custodian’s insolvency.47 the commenters. Nonetheless, fund’s assets will be subject to 41 In addition, consideration must be recognizing the benefits of using reasonable care. As noted in the given to the custodian’s reputation and terminology currently used and Proposing Release, the protections standing generally. The amended rule commonly understood by participants provided by custodians within a foreign 42 does not limit the Foreign Custody in fund custodial arrangements, the country can vary widely. The Manager to considering the foreign Commission has decided to adopt a amended rule specifies certain custodian’s reputation in the country ‘‘reasonable care’’ standard as suggested additional factors that should be where the custodian is located. This by commenters. The use of this considered in assessing the custodian’s approach seeks to provide greater terminology also underscores the internal controls: The physical flexibility to evaluate a custodian’s objective nature of the standard for protections the custodian makes reputation based on the facts and determining whether a fund’s custodial available for certificated securities (e.g., circumstances relevant to the particular arrangements in a particular country the use of vaults or other facilities), the custodian (such as the custodial services satisfy a ‘‘reasonableness’’ standard. custodian’s method of keeping custodial it provides in other jurisdictions).48 The amended rule requires the fund’s records (e.g., the use of computers, board or its delegate (the ‘‘Foreign microfilm or paper records), as well as iii. Jurisdiction security and data protection practices Custody Manager’’) to determine that The amended rule also requires the the fund’s assets will be subject to (e.g., alarm systems and the use of pass codes and back-up procedures for Foreign Custody Manager to assess the reasonable care if maintained with the likelihood of U.S. jurisdiction over and foreign custodian.38 This determination electronically stored information). The proposed amendments would have enforcement of judgments against a would be based on standards applicable foreign custodian.49 This provision is 39 treated these factors as related to the to custodians in the relevant market. designed to allow the Foreign Custody In making this determination, the decision to place fund assets in a country.43 Commenters suggested, and Manager to consider various factors, Foreign Custody Manager must consider including whether a foreign custodian all factors relevant to the safekeeping of the Commission agrees, that these factors also should be considered in has branch offices in the United States. fund assets, including the custodian’s The Foreign Custody Manager should practices, procedures and internal selecting a particular foreign custodian.44 evaluate other jurisdictional and controls, its financial strength, enforcement means such as whether the reputation and standing, and whether foreign custodian has appointed an the fund will be able to obtain 41 Amended rule 17f–5(c)(1)(i) (17 CFR 270.17f– 5(c)(1)(i)). agent for service of process in the jurisdiction over and enforce judgments 42 See Proposing Release, supra note 5, at nn.88– United States or has consented to 40 against the custodian. The 89 and accompanying text. For example, if delivery jurisdiction in this country. The Commission notes that the reasonable vs. payment procedures are not part of the Commission recognizes that U.S. care standard is merely a threshold settlement practices of a particular foreign market, some custodians in that market might provide jurisdiction may not be obtainable over standard, and that fund boards and their safeguards that address the lack of such procedures, certain foreign depositories and other delegates have the flexibility to agree while others might not. See, e.g., Department of the custodians, and an affirmative finding of that the delegate will select foreign Treasury, Office of Comptroller of the Currency, U.S. jurisdiction would not be required. custodians that will exercise a higher Emerging Market Country Products and Trading Activities 20 (Dec. 1995) (discussing alternatives to Rather, the existence or absence of U.S. delivery vs. payment procedures). Such differences jurisdiction would have to be 37 See Proposing Release, supra note 5, at n.80 among custodians should be considered in considered in making the overall and accompanying text. determining whether a particular custodian will 38 Amended rule 17f–5(c)(1) (17 CFR 270 17f– provide reasonable care for fund assets. See supra 5(c)(1)). note 17 (discussing the delivery vs. payment 45 Amended rule 17f–5(c)(1)(ii) (17 CFR 270.17f– 39 Id. As noted in the Proposing Release, supra procedures). 5(c)(1)(ii)). note 5, at nn.88–89 and accompanying text, while 43 See Proposing Release, supra note 5, at n.54 46 See infra, Section III.D.1 of this Release. reference to U.S. standards may be relevant in and accompanying text. 47 See Proposing Release, supra note , at nn.125– determining whether the fund’s assets will be 44 See Letter from Chase Manhattan Bank to 131 and accompanying text. maintained with reasonable care, the rule does not Jonathan G. Katz, Secretary, Securities and 48 Amended rule 17f–5(c)(1)(iii) (17 CFR 270.17f– require parity between foreign and U.S. custodial Exchange Commission (Oct. 6, 1995), File No. S7– 5(c)(1)(iii)). The amended rule no longer addresses arrangements. 23–95, at n.4 (noting that the use of vaults and a custodian’s efficiency and relative costs. 40 Amended rule 17f–5(c)(1) (i) through (iv) (17 computers, for example, is important with respect 49 Amended rule 17f–5(c)(1)(iv) (17 CFR 270.17f– CFR 270.17f–5(c)(1) (i) through (iv)). to any particular foreign custodian). 5(c)(1)((iv)). Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26929 determination that the custodian will funds and their custodians with the fund assets, and in establishing provide reasonable care for fund assets. flexibility to take advantage of monitoring procedures with respect to innovations that are consistent with the custodial arrangement.60 The 2. Foreign Custody Contract investor protection. Finally, as Foreign Custody Manager, for example, Rule 17f–5 currently requires a fund’s discussed below, the specified contract should consider adopting procedures for foreign custody arrangements to be requirements have been modified to assuring that the amount maintained in governed by a written contract that the reflect commenters’ suggestions and deposit accounts that could be subject to fund’s board determines is in the best staff interpretive positions. liens is kept to a minimum or explore interests of the fund and which contains reasonable alternatives to cash deposits. specified provisions.50 The proposed a. Indemnification and Insurance amendments would have eliminated the Rule 17f–5 currently requires the c. Omnibus Accounts requirement that specific provisions be foreign custody contract to provide that In an ‘‘omnibus account’’ structure, included in the contract but would have the fund will be adequately indemnified the assets of more than one custodial required the Foreign Custody Manager and its assets adequately insured in the customer are contained in an account to determine that the contract would event of loss.54 This provision has been that has been established, typically by provide reasonable protection for fund interpreted as permitting the contract to and in the name of an intermediary assets. Although a small number of provide for indemnification (but not custodian, with a foreign bank or commenters supported the proposed insurance) if the indemnification securities depository. Rule 17f–5 approach, commenters generally favored arrangements would adequately protect currently requires the foreign custody retaining the contract requirements in the fund.55 In response to the contract to provide that adequate the rule as benefitting funds and their commenters’ suggestions, the records will be maintained identifying shareholders. The commenters asserted, Commission has clarified the provision the assets in foreign custody as among other things, that the rule’s in rule 17f–5 to reflect this belonging to the fund.61 Although the requirements have resulted in interpretation.56 The amended rule Commission staff has taken the position international standards for foreign specifies that the contract must provide that the current rule does not prescribe custody agreements that have served to for indemnification or insurance a specific manner for keeping custodial protect investors. arrangements (or any combination of the records, and therefore does not prohibit In light of these comments, the foregoing) such that the fund will be omnibus accounts,62 several Commission has concluded that the adequately protected against the risk of commenters recommended amending amended rule should continue to loss of assets held in accordance with the rule to specifically recognize the require foreign custody arrangements to the contract.57 permissibility of omnibus accounts. be governed by a written contract. The amended rule provides that the b. Liens Consistent with the new standard for custodian’s records may either identify evaluating foreign custody Rule 17f–5 currently requires the the assets as belonging to the fund or as arrangements, the amended rule foreign custody contract to provide that being held by a third party for the requires that the Foreign Custody the fund’s assets will not be subject to benefit of the fund.63 The amended rule Manager determine that the contract any right, charge, security interest, lien therefore recognizes that in an omnibus will provide reasonable care for fund or claim of any kind in favor of the account structure, the securities 51 assets. The amended rule also retains foreign custodian or its creditors except depository’s books may show that the 52 the specific contract requirements. In a claim of payment for the safe custody custodian is the owner of the fund’s addition, the amended rule permits the or administration of the fund’s assets.58 assets. The amended rule makes clear, contract to contain alternative Commenters suggested that in many however, that the fund’s interest in the provisions in lieu of those specified in jurisdictions, cash deposits may become account should be reflected on the the rule. The Foreign Custody Manager subject to creditors’ claims if a books of the custodian.64 must determine that the alternative custodian becomes bankrupt. The rule provisions, in their entirety, will as amended addresses this issue by d. Depository Arrangements provide the same or a greater level of providing that the prohibition against The Commission understands that care and protection for fund assets as liens does not apply to cash deposits foreign depository arrangements the specified provisions, in their that may become subject to creditors’ typically are governed not by contract, 53 entirety. This change should provide claims or rights arising under but pursuant to rules or practices of the bankruptcy, insolvency, or other similar depository.65 To accommodate the use 50 Rule 17f–5(a)(1)(iii). The contract generally laws.59 If a fund places assets with a must provide that: (A) The fund will be 60 indemnified and its assets insured in the event of custodian in a jurisdiction in which the See infra Section III.C.3 of this Release. loss; (B) the fund’s assets will not be subject to liens deposits can become subject to a lien, 61 Rule 17f–5(a)(1)(iii)(D). or other claims in favor of the foreign custodian or the Foreign Custody Manager should 62 See State Street Bank & Trust Company (Feb. its creditors; (C) the fund’s assets will be freely take this factor into account in 28, 1995). transferable without the payment of money; (D) 63 Amended rule 17f–5(c)(2)(i)(D) (17 CFR records will be kept identifying the fund’s assets as determining whether the foreign 270.17f–5(c)(2)(i)(D)). belonging to the fund; (E) the fund’s independent custodian has the requisite financial 64 Id. A conforming change has been made to public accountants will be given access to those strength to provide reasonable care for paragraph (c)(2)(i)(F) of the rule, which requires records or confirmation of the contents of those that the fund receive notice of any transfers of fund records; and (F) the fund will receive periodic assets to or from the custodian. This notice 54 Rule 17f–5(a)(1)(iii)(A). reports, including notification of any transfers to or provision requires notice of transfers to or from 55 from the fund’s account. Rule 17f–5(a)(1)(iii)(A) See Investment Company Institute (Nov. 4, third party accounts. Amended rule 17f–5(c)(2)(i)(F) through (F). 1987). (17 CFR 270.17f–5(c)(2)(i)(F)). 56 51 Reasonable care, in this context, would be Amended rule 17f–5(c)(2)(i)(A) (17 CFR 65 Typically, the contractual arrangement determined by reference to the same standards used 270.17f–5(c)(2)(i)(A)). pursuant to which fund assets are held in a foreign in selecting the foreign custodian. 57 See Investment Company Institute, supra note depository involves an eligible foreign bank that is 52 Amended rule 17f–5(c)(2)(i) (17 CFR 270.17f– 55. itself a subcustodian of the fund’s U.S. custodian. 5(c)(2)(i)). 58 Rule 17f–5(a)(1)(iii)(B). Rule 17f–5 currently does not require the foreign 53 Amended rule 17f–5(c)(2)(ii) (17 CFR 270.17f– 59 Amended rule 17f–5(c)(2)(i)(B) (17 CFR depository to be party to the fund’s foreign custody 5(c)(2)(ii)). 270.17f–5(c)(2)(i)(B)). Continued 26930 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations of these depositories, the Commission is all factors that affect the foreign The Commission understands, amending rule 17f–5 to clarify that the custodian’s financial strength and its however, that a number of market provisions required to be in the custody ability to provide custodial services, participants currently use arrangements contract may be reflected in the rules or including credit and market risks.71 involving an unaffiliated primary established practices or procedures of Commenters strongly supported these custodian of the fund and a foreign sub- the depository, or in any combination of amendments. custodian that is affiliated with the the foregoing.66 Under the amended rule, any foreign fund.75 The Commission is of the view bank or trust company that is subject to that such an arrangement, provided it is 3. Monitoring Custody Arrangements foreign bank or trust company structured with appropriate oversight and Withdrawing Fund Assets regulation, as well as any U.S. bank and controls by the unaffiliated Rule 17f–5 currently contains detailed subsidiary, may be an eligible foreign intermediary (i.e., the primary provisions concerning board oversight custodian.72 As discussed above, a custodian), may adequately address the and monitoring of foreign custodial custodian’s financial strength is an concerns of self-custody. The risks of arrangements.67 The amended rule important factor to be considered in misappropriation of fund assets are replaces these provisions with a selecting a foreign custodian. The mitigated when the custody requirement that the Foreign Custody amended rule requires the Foreign arrangement is entered into by, and Manager establish a system to monitor Custody Manager to evaluate the operated through, an unaffiliated the appropriateness of maintaining the financial strength of a foreign custodian intermediary custodian and is subject to fund’s assets with a particular custodian in determining whether the fund’s adequate independent scrutiny. and the fund’s foreign custody assets will be subject to reasonable care The Commission believes that this contract.68 Commenters supported these if maintained with that custodian.73 generally would be the case when the amendments. 2. Affiliated Foreign Custodians fund’s assets are held by the foreign sub- If a foreign custody arrangement no custodian in an omnibus account in the longer meets the requirements of the Rule 17f–5 currently does not address name of the primary custodian, so as to amended rule, the fund must withdraw affiliated foreign custody arrangements. preclude specific identification of fund its assets from the custodian as soon as Under the proposed amendments, assets by the affiliated sub-custodian. In reasonably practicable.69 Rule 17f–5’s eligible foreign banks and trust addition, adequate involvement by an monitoring requirement is intended to companies would have been prohibited unaffiliated custodian would require result in the Foreign Custody Manager from being affiliated persons of the fund that the sub-custodian be permitted to receiving sufficient and timely or affiliated persons of such persons. settle transactions involving fund assets information to permit it to respond to The Commission proposed this solely on receipt of instructions from material changes in the fund’s foreign approach because rule 17f–2 under the the primary custodian (which, in turn, custody arrangement. The amended rule Investment Company Act, the rule that receives its instructions from the focuses on the importance of taking governs funds’ self-custody fund).76 The primary custodian also prompt action based on the arrangements and has been interpreted should closely monitor the fund’s circumstances presented. For example, a by the Commission staff to apply to account to assure that unauthorized fund that places substantially all of its affiliated custody arrangements, transactions have not occurred, and the assets with one custodian in a single appeared to be unworkable in the 74 fund’s auditors should review and test country may require more time to foreign custody context. the monitoring and control safeguards Commenters generally disagreed with withdraw those assets than a fund that for fund assets. has placed only a small percentage of its the proposed prohibition, arguing that it assets with a particular custodian in a would be particularly troublesome in 3. Securities Depositories particular country. certain markets where there is a limited Rule 17f–5 currently includes among number of eligible custodians. In eligible foreign custodians a foreign D. Eligible Foreign Custodians response to these comments, and upon securities depository or clearing agency 1. Foreign Banks and Trust Companies further consideration of the issue, the that operates the only system for the Commission is not including the central handling of securities or Rule 17f–5 currently limits the class proposed prohibition on foreign of ‘‘eligible foreign custodians’’ to equivalent book-entries in a country (the affiliated custody arrangements in rule ‘‘only system requirement’’).77 The only foreign banks and trust companies that 17f–5 as amended. The Commission have more than $200 million in system requirement was designed to will consider the issues raised by ensure a country’s interest in shareholders’ equity and U.S. bank foreign affiliated custody arrangements establishing and maintaining a subsidiaries that have more than $100 when it considers comprehensive depository’s integrity. Because the million in shareholders’ equity.70 The amendments to rule 17f–2. Commission proposed eliminating these requirement has been unnecessarily restrictive, the Commission proposed to requirements in favor of a more flexible 71 See Proposing Release, supra note 5, at nn.124– 78 standard that allows the Foreign 126 and accompanying text. eliminate it. Commenters uniformly Custody Manager to take into account 72 Amended rule 17f–5(a)(1) (17 CFR 270.17f– supported the proposed change. 5(a)(1)). The amended rule requires a 73 See supra Section III.C.1.b.ii of this Release. contract. See Proposing Release, supra note 5, at nn. securities depository or clearing agency 74 98–100 and accompanying text. See Proposing Release, supra note 5, at n.138; that acts as a system for the central Pegasus Income and Capital Fund, Inc. (Dec. 31, 66 Amended rule 17f–5(c)(2) (17 CFR 270.17f– 1977) (to guard against potential abuses resulting 5(c)(2)). 75 from control over fund assets by related persons, See supra note 18 and accompanying text 67 Rule 17f–5(a) (2) through (4). rule 17f–2 (17 CFR 270.17f–2) has been applied to (discussing primary custodians). 68 Amended rule 17f–5(c)(3)(i) (17 CFR 270.17f– affiliated custody arrangements). Rule 17f–2 76 The affiliated sub-custodian should not share 5(c)(3)(i)). requires, among other things, that fund assets be personnel with other affiliates of the fund (e.g., the 69 Amended rule 17f–5(c)(3)(ii) (17 CFR 270.17f– maintained in a bank that is subject to state or fund’s investment adviser) to assure the integrity of 5(c)(3)(ii)). Current rule 17f–5(a)(4) requires fund federal regulation; the fund’s assets also must be the safeguards for fund assets. assets to be withdrawn within 180 days under these subject to Commission inspection and verified by 77 Rule 17f–5(c)(2)(iii). circumstances. an independent public accountant. Rule 17f–2(b), 78 See Proposing Release, supra note 5, at nn.155– 70 Rule 17f–5(c)(2)(i), (ii). (d), (e) (17 CFR 270.17f–2(b), (d), (e)). 156 and accompanying text. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26931 handling of securities or equivalent F. Canadian Funds board make the findings required by the book-entries to be regulated by a foreign Rule 17f–5 currently contains special amended rule or appoint a delegate to 79 financial regulatory authority. The provisions governing the foreign do so) within one year of the effective Commission believes that foreign custody arrangements of Canadian date of these amendments. The one year regulation of a depository demonstrates funds registered in the United States.84 period is designed to give funds the a country’s interest in the depository’s To address jurisdictional concerns flexibility to bring an existing foreign safety, thus achieving the Commission’s underlying section 7(d) of the Act, these custody arrangement into compliance objective. provisions are more restrictive than with the amended rule either when that arrangement would have been subject to E. Assets Maintained in Foreign Custody those applied to U.S. funds and allow Canadian funds to maintain their assets the fund board’s annual review, as was Rule 17f–5 currently permits a fund to only in overseas branches of U.S. required by the rule before these use foreign custody arrangements for its banks.85 Because Canadian funds have amendments, or at any board meeting foreign securities, cash, and cash not sought to register under the Act for within the one year period. equivalents.80 Rule 17f–5 defines foreign some time, and very few Canadian securities to include those that are V. Cost/Benefit Analysis and Effects on funds currently offer their shares in the issued and sold primarily outside the Competition, Efficiency and Capital United States, the proposed United States by foreign and U.S. Formation amendments would have made limited issuers.81 By restricting the types of The amendments to rule 17f–5 seek to conforming changes in the foreign securities that may be maintained give funds greater flexibility in their custody requirements applicable to outside the United States, the rule seeks foreign custody arrangements consistent Canadian funds. to establish a nexus between its scope The Commission received one with investor protection. The amended and its purpose (i.e., to give funds the comment letter addressing Canadian rule permits a fund’s board to delegate flexibility to keep abroad assets that are funds. The commenter suggested that its responsibilities to select and monitor purchased or intended to be sold Canadian funds be permitted to use a fund’s foreign custody arrangements abroad). In addition, rule 17f–5 foreign custody arrangements on the and no longer requires the board to currently limits the cash and cash same basis as their U.S. counterparts. approve these arrangements annually. equivalents that a fund may maintain The amended rule generally reflects this The amended rule does require outside the United States to amounts approach. As under the current rule, delegates to provide fund boards with that are reasonably necessary to effect however, a Canadian fund’s assets must written reports regarding certain aspects the fund’s foreign securities of the foreign custody arrangements. 82 be kept in the custody of an overseas transactions. branch of a U.S. bank. In addition, if the This requirement is designed to The Proposing Release requested Canadian fund’s board delegates its facilitate board oversight and protect comment whether the rule should responsibilities under the rule, the only fund shareholders. The potential costs continue to restrict the types of associated with this requirement are not permissible delegates are the fund’s securities and amounts of cash and cash expected to be significant, and are likely officers, investment adviser or a U.S. equivalents that a fund may maintain to be much less than the costs bank.86 outside the United States. One associated with the current requirement commenter suggested that this provision IV. Effective Date; Compliance Dates of providing fund boards with may not permit a fund to maintain The amendments to rule 17f–5 information pertaining to their annual investments in other assets, such as become effective thirty days after review of foreign custody arrangements. foreign currencies, for which the publication in the Federal Register. The amendments also expand the primary market is outside of the United Funds that wish to rely on the amended class of foreign banks and securities States. To better reflect these types of rule prior to the effective date of the depositories that may serve as investment practices, the amended rule amendments may do so. Funds that custodians of fund assets overseas. permits a fund to maintain in foreign have established foreign custody These amendments give funds greater custody any investment (including arrangements in accordance with rule flexibility in selecting foreign foreign currencies) for which the 17f–5 prior to the effective date of these custodians and eliminate the need for primary market is outside the United funds to request administrative relief for 83 amendments (‘‘existing foreign custody States. arrangements’’) must bring these certain foreign custody arrangements. Section 2(c) of the Investment arrangements into compliance with the 79 Amended rule 17f–5(a)(1)(ii) (17 CFR 270.17f– Company Act provides that whenever amended rule (i.e., have the fund’s 5(a)(1)(ii)). Rule 17f–5 currently also includes the Commission is engaged in among eligible foreign custodians a security rulemaking and is required to consider depository or clearing agency, incorporated or United States’’). The ‘‘primary market’’ formulation organized under the laws of a country other than is designed to encompass foreign securities as well or determine whether an action is the United States, that ‘‘operates’’ a transnational as other types of investments. necessary or appropriate in the public system for the central handling of securities or 84 Rule 174f–5(b) interest, the Commission must consider, equivalent book-entries. The amended rule refers to 85 Section 7(d) of the Investment Company Act securities depositories or clearing agencies that ‘‘act in addition to the protection of (15 U.S.C. 80a–7(d)) prohibits foreign investment investors, whether the action will as’’ such transnational systems. Amended rule 17f– companies from publicly offering their securities in 5(a)(1)(iii) (17 CFR 270.17f–5(a)(1)(iii). This change the United States unless the Commission issues an promote efficiency, competition, and is intended to recognize that in some instances the order permitting registration under the Act. Rule capital formation.87 The Commission service provider that operates or administers the 7d–1 under the Investment Company Act (17 CFR transnational system may be organized under the has considered the amendments to rule 270.7d–1) sets forth conditions governing 17f–5 in light of these standards. The laws of the United States (e.g., as a foreign branch applications by Canadian funds that seek of a U.S. bank). Commission orders pursuant to section 7(d). Among Commission believes that the 80 Rule 17f–5(a). other conditions, rule 7d–1 provides that the assets amendments are consistent with the 81 Rule 17f–5(c)(1). of Canadian funds are to be held in the United public interest and will promote 82 Rule 17f–5(a). States by a U.S. bank, except as provided under rule efficiency and competition because the 83 Amended rule 17f–5(c) (17 CFR 270.17f–5(c)). 17f–5. Rule 7d–1(b)(8)(v) (17 CFR 270.7d– As a result of this change, the rule no longer refers 1(b)(8)(v)). amendments (i) permit fund directors to to ‘‘foreign securities’’ (which had been defined as 86 Amended rule 17f–5(d) (1), (2) (17 CFR securities ‘‘issued and sold primarily outside of the 270.17f–5(d) (1), (2)). 87 15 U.S.C. 80a–-2(c). 26932 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations play a more traditional oversight role VII. Paperwork Reduction Act Code of Federal Regulations is amended with respect to the custody of fund The amendments to rule 17f–5, among as follows: assets overseas, (ii) better focus the other things (i) permit a fund’s board of PART 270ÐRULES AND scope of the rule on safekeeping directors to delegate its responsibilities REGULATIONS, INVESTMENT considerations, and (iii) expand the under the rule upon a finding that it is COMPANY ACT OF 1940 class of eligible foreign banks and reasonable to rely on the delegate to securities depositories that may serve as perform the delegated responsibilities, 1. The authority citation for part 270 custodians of fund assets. The and (ii) require the delegate to notify the continues to read, in part, as follows: Commission also believes that the board of the placement of the fund’s Authority: 15 U.S.C. 80a–1 et seq., 80a–37, amendments will have no adverse effect assets with a particular foreign 80a–39 unless otherwise noted; on capital formation. custodian and of any material change in the fund’s foreign custody * * * * * VI. Summary of Final Regulatory arrangements. These provisions 2. Section 270.17f–5 is revised to read Flexibility Analysis constitute a ‘‘collection of information’’ as follows: requirement within the meaning of the A summary of the Initial Regulatory § 270.17f±5. Custody of investment Paperwork Reduction Act of 1995 (44 Flexibility Analysis, which was company assets outside the United States. U.S.C. 3501), because making the prepared in accordance with 5 U.S.C. finding and providing the notices are (a) Definitions. For purposes of this 603, was published in Investment necessary to be able to rely on the section: Company Act Release No. 21259. No amended rule for foreign custody (1) Eligible Foreign Custodian means comments were received on that arrangements. An agency may not an entity that is incorporated or Analysis. The Commission has prepared conduct or sponsor, and a person is not organized under the laws of a country a Final Regulatory Flexibility Analysis required to respond to, a collection of other than the United States and that is: (‘‘FRFA’’) in accordance with 5 U.S.C. information unless it displays a (i) A Qualified Foreign Bank or a 604. The FRFA states that the objective currently valid control number. majority-owned direct or indirect of the amendments is to give funds Accordingly, the Commission subsidiary of a U.S. Bank or bank- greater flexibility in their foreign submitted the proposed amendments to holding company; custody arrangements by permitting the Office of Management and Budget (ii) A securities depository or clearing agency that acts as a system for the fund boards to delegate their (‘‘OMB’’) pursuant to 44 U.S.C. 3507 central handling of securities or responsibilities to select and monitor and received approval of the equivalent book-entries in the country foreign custodians, and by expanding amendments’’ ‘‘collection of that is regulated by a foreign financial the class of eligible foreign custodians. information’’ requirements (OMB control number 3235–0269). As regulatory authority as defined under The FRFA provides that approximately section 2(a)(50) of the Act (15 U.S.C. 194 funds and 242 investment advisers discussed in section III.A. of this Release, the Commission has 80a–2(a)(50)); or that are small entities may be effected (iii) A securities depository or by the amendments. The FRFA explains determined not to adopt the proposed amendment requiring a fund’s board to clearing agency that acts as a that the amendments seek to reduce transnational system for the central burdens on all funds, including those make a finding that placing fund assets in a particular country would provide handling of securities or equivalent that are small entities, and that the reasonable protection for fund assets. book-entries. amended rule’s compliance The Commission believes that this is not (2) Foreign Custody Manager means a requirements are necessary for the a material change for purposes of Fund’s or a Registered Canadian Fund’s safekeeping of fund assets and investor collection of information requirements board of directors or any person serving protection. Finally, the FRFA states that and will not have any impact on the as the board’s delegate under paragraphs in adopting the amendments the Commission’s estimate of total burden (b) or (d) of this section. Commission considered (a) the hours. The amended rule does not (3) Fund means a management establishment of differing compliance require that the collection of investment company registered under requirements that take into account the information be made public or kept the Act (15 U.S.C. 80a) and incorporated resources available to small entities; (b) confidential by the parties; to the extent or organized under the laws of the simplification of the rule’s requirements that the Commission obtains access to United States or of a state. for small entities; (c) the use of the collection of information through its (4) Qualified Foreign Bank means a performance rather than design inspection program, the information banking institution or trust company, standards; and (d) an exemption from generally would not be available to third incorporated or organized under the the rule for small entities. The FRFA parties. laws of a country other than the United states that the Commission concluded States, that is regulated as such by the VIII. Statutory Authority that different requirements for small country’s government or an agency of the country’s government. entities are not necessary and would be The Commission is amending rule (5) Registered Canadian Fund means inconsistent with investor protection, 17f–5 pursuant to the authority set forth in sections 6(c) and 38(a) of the a management investment company and that the amended rule incorporates incorporated or organized under the performance standards to the extent Investment Company Act of 1940 (15 U.S.C. 80a–6(c), 80a–37(a)). laws of Canada and registered under the practicable. Cost-benefit information Act pursuant to the conditions of reflected in the ‘‘Cost/Benefit Analysis’’ List of Subjects in 17 CFR Part 270 § 270.7d–1. section of this Release also is reflected Investment companies, Reporting and (6) Securities Depository means a in the FRFA. A copy of the FRFA may recordkeeping requirements, Securities. system for the central handling of be obtained by contacting Robin S. securities as defined in § 270.17f–4(a). Gross, Mail Stop 10–2, Securities and Text of Rule (7) U.S. Bank means an entity that is: Exchange Commission, 450 Fifth Street, For the reasons set out in the (i) A banking institution organized NW., Washington, DC. 20549. preamble, Title 17, Chapter II of the under the laws of the United States; Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26933

(ii) A member bank of the Federal (i) The custodian’s practices, safekeeping of the Fund’s assets, Reserve System; procedures, and internal controls, including, but not limited to, (iii) Any other banking institution or including, but not limited to, the notification of any transfer to or from trust company organized under the laws physical protections available for the Fund’s account or a third party of any state or of the United States, certificated securities (if applicable), the account containing assets held for the whether incorporated or not, doing method of keeping custodial records, benefit of the Fund. business under the laws of any state or and the security and data protection (ii) Such contract may contain, in lieu of the United States, a substantial practices; of any or all of the provisions specified portion of the business of which (ii) Whether the custodian has the in paragraph (c)(2)(i) of this section, consists of receiving deposits or requisite financial strength to provide such other provisions that the Foreign exercising fiduciary powers similar to reasonable care for Fund assets; Custody Manager determines will those permitted to national banks under (iii) The custodian’s general provide, in their entirety, the same or a the authority of the Comptroller of the reputation and standing and, in the case greater level of care and protection for Currency and which is supervised and of a Securities Depository, the Fund assets as the specified provisions, examined by State or Federal authority depository’s operating history and in their entirety. having supervision over banks, and number of participants; and (3)(i) Monitoring the Foreign Custody which is not operated for the purpose of (iv) Whether the Fund will have Arrangements. The Foreign Custody evading the provisions of this section, or jurisdiction over and be able to enforce Manager must have established a system (iv) A receiver, conservator, or other judgments against the custodian, such to monitor the appropriateness of liquidating agent of any institution or as by virtue of the existence of any maintaining the Fund’s assets with a firm included in paragraphs (a)(7)(i), offices of the custodian in the United particular custodian under paragraph (ii), or (iii) of this section. States or the custodian’s consent to (c)(1) of this section, and the contract (b) Delegation. A Fund’s board of service of process in the United States. governing the Fund’s arrangements directors may delegate to the Fund’s (2) Contract. The Fund’s foreign under paragraph (c)(2) of this section. investment adviser or officers or to a custody arrangements must be governed (ii) If an arrangement no longer meets U.S. Bank or to a Qualified Foreign by a written contract (or, in the case of the requirements of this section, the Bank the responsibilities set forth in a Securities Depository, by such a Fund must withdraw its assets from the paragraphs (c)(1), (c)(2), or (c)(3) of this contract, by the rules or established custodian as soon as reasonably section, provided that: practices or procedures of the practicable. (1) The board determines that it is depository, or by any combination of the (d) Registered Canadian Funds. Any reasonable to rely on the delegate to foregoing) that the Foreign Custody Registered Canadian Fund may place perform the delegated responsibilities; Manager has determined will provide and maintain outside the United States (2) The board requires the delegate to reasonable care for Fund assets based on any investments (including foreign provide written reports notifying the the standards specified in paragraph currencies) for which the primary board of the placement of the Fund’s (c)(1) of this section. market is outside the United States, and assets with a particular custodian and of (i) Such contract shall include such cash and cash equivalents as are any material change in the Fund’s provisions that provide: reasonably necessary to effect the arrangements, with the reports to be (A) For indemnification or insurance Fund’s transactions in such provided to the board at such times as arrangements (or any combination of the investments, in accordance with the the board deems reasonable and foregoing) such that the Fund will be requirements of this section, provided appropriate based on the circumstances adequately protected against the risk of that: of the Fund’s foreign custody loss of assets held in accordance with (1) The assets are placed in the care arrangements; and such contract; of an overseas branch of a U.S. Bank (3) The delegate agrees to exercise (B) That the Fund’s assets will not be that has aggregate capital, surplus, and reasonable care, prudence and diligence subject to any right, charge, security undivided profits of a specified amount, such as a person having responsibility interest, lien or claim of any kind in which must not be less than $500,000; for the safekeeping of Fund assets favor of the custodian or its creditors and would exercise, or to adhere to a higher except a claim of payment for their safe (2) The Foreign Custody Manager is standard of care, in performing the custody or administration or, in the case the Fund’s board of directors, its delegated responsibilities. of cash deposits, liens or rights in favor investment adviser or officers, or a U.S. (c) Selecting an Eligible Foreign of creditors of the custodian arising Bank. Custodian. A Fund may place and under bankruptcy, insolvency, or May 12, 1997. maintain in the care of an Eligible similar laws; By the Commission. Foreign Custodian any investments (C) That beneficial ownership for the Margaret H. McFarland, (including foreign currencies) for which Fund’s assets will be freely transferable Deputy Secretary. the primary market is outside the without the payment of money or value United States, and such cash and cash other than for safe custody or [FR Doc. 97–12881 Filed 5–15–97; 8:45 am] equivalents as are reasonably necessary administration; BILLING CODE 8010±01±P to effect the Fund’s transactions in such (D) That adequate records will be investments, provided that: maintained identifying the assets as (1) The Foreign Custody Manager belonging to the Fund or as being held EQUAL EMPLOYMENT OPPORTUNITY determines that the Fund’s assets will by a third party for the benefit of the COMMISSION be subject to reasonable care, based on Fund; the standards applicable to custodians (E) That the Fund’s independent 29 CFR Part 1601 in the relevant market, if maintained public accountants will be given access Increased Fine for Notice Posting with the custodian, after considering all to those records or confirmation of the Violations factors relevant to the safekeeping of contents of those records; and such assets, including, without (F) That the Fund will receive AGENCY: Equal Employment limitation: periodic reports with respect to the Opportunity Commission. 26934 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations

ACTION: Final rule. and joint labor-management committee required notices in violation of the controlling an apprenticeship or other regulation and statute. SUMMARY: In accordance with Federal training program that has an obligation Regulatory Flexibility Act Civil Monetary Penalty Inflation under Title VII or the ADA must post Adjustment Act of 1990, as amended by notices describing the applicable A regulatory flexibility analysis is the Debt Collection Improvement Act of provisions of Title VII and the ADA. only required by the Regulatory 1996, this final rule adjusts for inflation Such notices must be posted in Flexibility Act (5 U.S.C. 601–612), when the civil money penalty for violation of prominent and accessible places where notice and comment is required by the notice posting requirements. notices to employees, applicants and Administrative Procedure Act or some EFFECTIVE DATE: This rule is effective on members are customarily maintained. other statute. As stated above, notice and comment is not required for this June 16, 1997. Currently, 42 U.S.C. 2000e–10(b) and rule. For that reason, the requirements FOR FURTHER INFORMATION CONTACT: 29 CFR 1601.30(b) make failure to of the Regulatory Flexibility Act do not Willie King, Director, Financial comply with the notice posting apply. Management Division (202) 663–4224. requirements punishable by a fine of not SUPPLEMENTARY INFORMATION: more than $100 for each separate Paperwork Reduction Act offense. Based on the inflation This final rule imposes no new I. The Debt Collection Improvement Act calculation described in Section I of this of 1996 reporting or recordkeeping requirements notice, we are adjusting the maximum necessitating clearance by OMB. In an effort to maintain the remedial penalty per violation to $110. List of Subjects in 29 CFR Part 1601 impact of civil money penalties (CMPs) III. Waiver of Proposed Rulemaking and promote compliance with the law, Administrative practice and the Federal Civil Monetary Penalty In developing this final rule, we are procedure. Inflation Adjustment Act of 1990 (Pub. waiving the usual notice of proposed For the Commission. L. 101–410) was amended by the Debt rulemaking and public comment Gilbert F. Casellas, Collection Improvement Act of 1996 procedures set forth in the Chairman. (Pub. L. 104–134) to require Federal Administrative Procedure Act (APA) (5 agencies to regularly adjust certain U.S.C. 553). The APA provides an For the reasons set forth in the CMPs for inflation. As amended, the law exception to the notice and comment preamble, 29 CFR part 1601 is revised requires each agency to make an initial procedures when an agency finds there as follows: inflationary adjustment for all is good cause for dispensing with such PART 1601ÐPROCEDURAL applicable CMPs, and to make further procedures on the basis that they are REGULATIONS adjustments at least once every four impracticable, unnecessary or contrary years thereafter for these penalty to the public interest. We have 1. The authority citation for part 1601 amounts. determined that under 5 U.S.C. continues to read as follows: The Debt Collection Improvement Act 553(b)(3)(B) good cause exists for Authority: 42 U.S.C. 2000e to 2000e–17; 42 of 1996 further stipulates that any dispensing with the notice of proposed U.S.C. 1111 to 12117. resulting increases in a CMP due to the rulemaking and public comment 2. Section 1601.30 is amended by calculated inflation adjustments (i) procedures for this rule. Specifically, revising paragraph (b) to read as follows: Should apply only to the violations that this rulemaking is required by the Debt occur after October 23, 1996 (the Act’s Collection Improvement Act of 1996, § 1601.30 Notices to be posted. effective date) and (ii) should not and the Commission has no discretion * * * * * exceed 10 percent of the penalty in determining the amount of the (b) Section 711(b) of Title VII makes indicated. published adjustment. Accordingly, we failure to comply with this section Method of Calculation are issuing these revised regulations as punishable by a fine of not more than a final rule. $110 for each separate offense. Under the Act, the inflation adjustment is determined by increasing IV. Regulatory Impact Statement [FR Doc. 97–12769 Filed 5–15–97; 8:45 am] the maximum CMP amount per Executive Order 12866 BILLING CODE 6570±06±M violation by the cost-of-living adjustment. The ‘‘cost-of-living’’ This final rule is exempt from Office adjustment is defined as the percentage of Management and Budget (OMB) DEPARTMENT OF THE TREASURY for each CMP by which the Consumer review under Executive Order 12866 Price Index (CPI) for June of the because it is limited to the adoption of Departmental Offices calendar year preceding the adjustment statutory language, without exceeds the CPI for the month of June interpretation. As indicated above, the 31 CFR Part 1 provisions contained in this final of the calendar year in which the Privacy Act of 1974; Implementation amount of such CMP was last set or rulemaking set forth an inflation adjusted pursuant to the law. Any adjustment required by the Debt AGENCY: Departmental Offices, Treasury. calculated increase under this Collection Improvement Act of 1996. ACTION: Final Rule. adjustment is subject to a specific Moreover, it has been determined that rounding formula set forth in the Act this final rule is not significant. The SUMMARY: In accordance with the and a ten percent limitation. great majority of employers and entities requirements of the Privacy Act of 1974, covered by these regulations comply as amended, 5 U.S.C. 552a, the II. EEOC Civil Money Penalties Effected with the posting requirement, and a Department of the Treasury issues a by This Adjustment result, we believe that any aggregate final rule to add the exemption claimed Under 42 U.S.C. § 2000e–10(a) and 29 economic impact of these revised for the Pacific Basin Reporting CFR § 1601.30(a), every employer, regulations will be minimal, affecting Network—Treasury/Customs .171. employment agency, labor organization, only those limited few who fail to post EFFECTIVE DATE: May 16, 1997. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26935

FOR FURTHER INFORMATION CONTACT: Dale and to detect and apprehend violators of individuals who are the subject of the Underwood, Disclosure Services, customs and related laws in that investigative files and other records. Department of the Treasury, individuals would thus be able to: Confidential sources and other Washington, DC 20220. (202) 622–0930. (1) Take steps to avoid detection; informers might refuse to provide SUPPLEMENTARY INFORMATION: The (2) Inform co-conspirators of the fact criminal investigators with valuable Privacy Act system of records notice that an investigation is being conducted; information if they could not be secure establishing the Pacific Basin Reporting (3) Learn the nature of the in their knowledge that their identities Network—Treasury/Customs .171, was investigation to which they are being would not be revealed through published at 57 FR 54633 on November subjected; disclosure of either their names or the (4) Learn the type of surveillance 19, 1992. A determination setting out nature of the information they supplied, being utilized; the findings by the Commissioner of the and this would seriously impair the (5) Learn whether they are only ability of the Customs Service to carry U.S. Customs was published as a suspects or identified law violators; proposed rule on November 19, 1992, at out its mandate to enforce the Customs (6) Continue or resume their illegal criminal and related laws. Additionally, 57 FR 54539. The proposed rule conduct without fear of detection upon requested comments be submitted by providing access to records contained in learning that they are not in a particular the PBRN system of records could reveal December 21, 1992; however none were system of records; and received. Accordingly, a final the identities of undercover law (7) Destroy evidence needed to prove enforcement officers who compiled determination was published in the the violation. Federal Register by the Department on information regarding an individual’s (b) 5 U.S.C. 552a(d)(1), (e)(4)(H) and criminal activities, thereby endangering behalf of the Customs Service on (f)(2), (3) and (5) enable individuals to November 29, 1996, at 61 FR 60559. the life or physical safety of those gain access to records pertaining to undercover officers or their families by This final rule is to conform the them. The Department believes that Department’s regulations found at 31 exposing them to possible reprisals. application of these provisions to the (c) 5 U.S.C. 552a(d)(2), (3) and (4), CFR 1.36 with the proposed and final PBRN system of records would (e)(4)(H) and (f)(4), which are dependent determination published by the compromise its ability to complete or upon access having been granted to Department on behalf of the Customs continue criminal investigations and to records pursuant to the provisions cited Service. The rule amends 31 CFR 1.36 detect and apprehend violators of in paragraph (b) above, enable to add the exemptions claimed for the customs and related criminal laws. individuals to contest (seek amendment Pacific Basin Reporting Network— Permitting access to records contained to) the content of records contained in Treasury/Customs .171 to the in the PBRN system of records would a system of records and require an Department’s regulations. provide individuals with significant agency to note an amended record and In accordance with 5 U.S.C. 552a (j) information concerning the nature of the provide a copy of an individual’s and (k) and § 1.23(c), the Department of investigation, and this could enable statement (of disagreement with the the Treasury exempts the Pacific Basin them to avoid detection or apprehension agency’s refusal to amend a record) to Reporting Network system of records in the following ways: persons or other agencies to whom the from certain provisions of the Privacy (1) By discovering the collection of record has been disclosed. The Act for the reasons indicated: facts which would form the basis for Department believes that the reasons set a. General exemptions under 5 U.S.C. their arrest; forth in paragraph (b) above are equally 552a(j)(2). Pursuant to the provisions of (2) By enabling them to destroy applicable to this subparagraph and, 5 U.S.C. 552a(j)(2), the Department of contraband or other evidence of accordingly, those reasons are hereby the Treasury (Department), hereby criminal conduct which would form the incorporated herein by reference. exempts the Basin Reporting Network basis for their arrest; and (d) 5 U.S.C. 552a(c)(3) requires that an system of records, maintained by the (3) By learning that the criminal agency make accountings of disclosures United States Customs Service, from the investigators had reason to believe that of records available to individuals provisions of 5 U.S.C. 552a(c)(3) and (4), a crime was about to be committed, they named in the records at their request; (d)(1)(2)(3) and (4), (e)(1), (2), (3), (4)(G), could delay the commission of the such accountings must state the date, (H) and (I), (5) and (8), (f) and (g). crime or change the scene of the crime nature and purpose of each disclosure of 1. Exempt system. The Pacific Basin to a location which might not be under a record and the name and address of Reporting Network—Treasury/Customs surveillance. Granting access to on- the recipient. The Department believes .171(PBRN), contains information of the going or closed investigative files would that application of this provision to the type described in 5 U.S.C. 552a(j)(2), also reveal investigative techniques and PBRN system of records would impair and shall be exempt from the provisions procedures, the knowledge of which the ability of other law enforcement of 5 U.S.C. 552a listed in paragraph a. could enable individuals planning agencies to make effective use of above except as otherwise indicated criminal activity to structure their future information provided by the Customs below. operations in such a way as to avoid Service in connection with the 2. Reasons for exemptions. (a) 5 detection or apprehension, thereby investigation, detection and U.S.C. 552a (e)(4)(G) and (f)(1) enable neutralizing law enforcement apprehension of violators of the individuals to be notified whether a investigative tools and procedures. criminal laws enforced by those other system of records contains records Further, granting access to investigative law enforcement agencies. Making pertaining to them. The Department files and records could disclose the accountings of disclosure available to believes that application of these identity of confidential sources and violators would alert those individuals provisions to the PBRN system of other informers and the nature of the to the fact that another agency is records would give individuals an information which they supplied, conducting an investigation into their opportunity to learn whether they are of thereby endangering the life or physical criminal activity, and this could reveal record either as suspects or as subjects safety of those sources of information by the geographic location of the other of a criminal investigation. This would exposing them to possible reprisals for agency’s investigation, the nature and compromise the ability of the having provided information relating to purpose of that investigation, and the Department to complete investigations the criminal activities of those dates on which that investigation was 26936 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations active. Violators possessing such and ‘‘disseminate.’’ At the time that individual an opportunity to attempt to knowledge would thereby be able to information is collected by the conceal his or her criminal activities so take appropriate measures to avoid Department, there is often insufficient as to avoid apprehension; detection or apprehension by altering time to determine whether the (3) In certain instances the subject of their operations, by transferring their information is relevant and necessary to a criminal investigation is not required criminal activities to other geographical accomplish a purpose of the to supply information to criminal areas or by destroying or concealing Department; in many cases information investigators as a matter of legal duty; evidence which would form the basis collected may not be immediately and for their arrest. In addition, providing susceptible to a determination of (4) During criminal investigations it is violators with accountings of disclosure whether the information is relevant and often a matter of sound investigative would alert those individuals to the fact necessary, particularly in the early procedure to obtain information from a that the Department has information stages of investigation. In many cases variety of sources in order to verify regarding their criminal activities and information which initially appears to information already obtained. could inform those individuals of the be irrelevant and unnecessary may, (i) 5 U.S.C. 552a(e)(3) requires that an general nature of that information; this, upon further evaluation or upon agency inform each individual whom it in turn, would afford those individuals continuation of the investigation, prove asks to supply information, on the form a better opportunity to take appropriate to have particular relevance to an which it uses to collect the information steps to avoid detection or apprehension enforcement program of the Department. or on a separate form that can be for violations of customs and related Further, not all violations of law retained by the individual: the authority criminal laws. discovered during a Customs Service which authorizes the solicitation of the (e) 5 U.S.C. 552a(c)(4) requires that an criminal investigation fall within the information and whether disclosure of agency inform any person or other investigative jurisdiction of the such information is mandatory or agency about any correction or notation Department; in order to promote voluntary; the principal purposes for of dispute made by the agency in effective law enforcement, it often which the information is intended to be accordance with 5 U.S.C. 552a(d) of any becomes necessary and desirable to used; the routine uses which may be record that has been disclosed to the disseminate information pertaining to made of the information; and the effects person or agency if an accounting of the such violations to other law on the individual of not providing all or disclosure was made. Since this enforcement agencies which have part of the requested information. The provision is dependent on an jurisdiction over the offense to which Department believes that the PBRN individual’s having been provided an the information relates. The Department system of records should be exempted opportunity to contest (seek amendment should not be placed in a position of from this provision in order to avoid to) records pertaining to him, and since having to ignore information relating to adverse effects on its ability to identify, the PBRN system of records is proposed violations of law not within its detect and apprehend violators of to be exempted from those provisions of jurisdiction where that information customs and related criminal laws. In 5 U.S.C. 552a relating to amendments of comes to the attention of the many cases information is obtained by records as indicated in paragraph (c) Department through the conduct of a confidential sources or other informers above, the Department believes that this lawful Customs Service investigation. or by undercover law enforcement provision should not be applicable to The Department therefore believes that officers under circumstances where it is the PBRN system of records. it is appropriate to exempt the PBRN necessary that the true purpose of their (f) 5 U.S.C. 552a(e)(4)(I) requires that system of records from the provisions of actions be kept secret so as to not let it an agency publish a public notice listing 5 U.S.C. 552a(e)(1). be known by the subject of the the categories of sources for information (h) 5 U.S.C. 552a(e)(2) requires that an investigation or his associates that a contained in a system of records. The agency collect information to the criminal investigation is in progress. Department believes that application of greatest extent practicable directly from Further, if it became known that the this provision to the PBRN system of the subject individual when the undercover officer was assisting in a records could compromise its ability to information may result in adverse criminal investigation, that officer’s life conduct investigations and to identify, determinations about an individual’s or physical safety could be endangered detect and apprehend violators of rights, benefits, and privileges under through reprisal, and, further, under customs and related criminal laws Federal programs. The Department such circumstances it may not be because revealing sources for believes that application of this possible to continue to utilize that information could: provision to the PBRN system of records officer in the investigation. In many (1) Disclose investigative techniques would impair the ability of the Customs cases individuals for personal reasons and procedures; Service to conduct investigations and to would feel inhibited in talking to a (2) Result in threatened or actual identify, detect and apprehend person representing a criminal law reprisal directed to informers by the violations of customs and related enforcement agency but would be subject under investigation; and criminal laws for the following reasons: willing to talk to a confidential source (3) Result in the refusal of informers (1) Most information collected about or undercover officer who they believed to give information or to be candid with an individual under criminal was not involved in law enforcement criminal investigators because of the investigation is obtained from third activities. In addition, providing a knowledge that their identities as parties such as witnesses and informers, source of information with written sources might be disclosed. and it is usually not feasible to rely evidence that he was a source, as (g) 5 U.S.C. 552a(e)(1) requires that an upon the subject of the investigation as required by this provision, could agency maintain in its records only such a source for information regarding his or increase the likelihood that the source information about an individual as is her criminal activities; of information would be the subject of relevant and necessary to accomplish a (2) An attempt to obtain information retaliatory action by the subject of the purpose of the agency required to be from the subject of a criminal investigation. Further application of this accomplished by statute or executive investigation will often alert that provision could result in an order. The term ‘‘maintain’’ as defined individual to the existence of an unwarranted invasion of the personal in 5 U.S.C. 552a(a)(3) includes ‘‘collect’’ investigation, thereby affording the privacy of the subject of the criminal Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26937 investigation, particularly where further and procedures outlined in those system of records contains records investigation would result in a finding records and in order to prevent pertaining to them. The Department that the subject was not involved in any revelation of the existence of an on- believes that application of these criminal activity. going investigation where there is a provisions to the PBRN system of (j) 5 U.S.C. 552a(e)(5) requires that an need to keep the existence of the records would impair the ability of the agency maintain all records used by the investigation secret. Department to successfully complete agency in making any determination (l) 5 U.S.C. 552a(g) provides civil investigations and inquiries of about any individual with such remedies to an individual for an agency suspected violators of civil and criminal accuracy, relevance, timeliness and refusal to amend a record or to make a laws and regulations under its completeness as is reasonably necessary review of a request for amendment, for jurisdiction. In many cases to assure fairness to the individual in an agency refusal to grant access to a investigations and inquiries into the determination. Since 5 U.S.C. record, for an agency failure to maintain violations of civil and criminal laws and 552a(a)(3) defines ‘‘maintain’’ to include accurate, relevant, timely and complete regulations involve complex and ‘‘collect’’ and ‘‘disseminate,’’ records which are used to make a continuing patterns of behavior. application of this provision to the determination which is adverse to the Individuals, if informed that they have PBRN system of records would hinder individual, and for an agency failure to been identified as suspected violators of the initial collection of any information comply with any other provision of 5 civil or criminal laws and regulations, which could not, at the moment of U.S.C. 552a in such a way as to have an would have an opportunity to take collection, be determined to be accurate, adverse effect on an individual. The measures to prevent detection of illegal relevant, timely and complete. Department believes that the PBRN action so as to avoid prosecution or the Similarly, application of this provision system of records should be exempted imposition of civil sanctions. They would seriously restrict the necessary from this provision to the extent that the would also be able to learn the nature flow of information from the civil remedies provided therein may and location of the investigation or Department to other law enforcement relate to provisions of 5 U.S.C. 552a inquiry and the type of surveillance agencies where a Customs Service from which the PBRN system of records being utilized, and they would be able investigation revealed information is proposed to be exempt. Since the to transmit this knowledge to co- pertaining to a violation of law which provisions of 5 U.S.C. 552a enumerated conspirators. Finally, violators might be was under the investigative jurisdiction in paragraphs (a) through (k) above are given the opportunity to destroy of another agency. In collecting proposed to be inapplicable to the PBRN evidence needed to prove the violation information during the course of a system of records for the reasons stated under investigation or inquiry. criminal investigation, it is not possible therein, there should be no or feasible to determine accuracy, corresponding civil remedies for failure (b) 5 U.S.C. 552a(d)(1), (e)(4)(H) and relevance, timeliness or completeness to comply with the requirements of (f)(2), (3) and (5) enable individuals to prior to collection of the information; in those provisions to which the gain access to records pertaining to disseminating information to other law exemption is proposed to apply. them. The Department believes that enforcement agencies it is often not Further, the Department believes that application of these provisions to the possible to determine accuracy, application of this provision to the PBRN system of records would impair relevance, timeliness or completeness PBRN system of records would its ability to complete or continue civil prior to dissemination because the adversely affect its ability to conduct or criminal investigations and inquiries disseminating agency may not have the criminal investigations by exposing to and to detect and apprehend violators of expertise with which to make such civil court action every stage of the customs and related laws. Permitting determinations. Further, information criminal investigative process in which access to records contained in the PBRN which may initially appear to be information is compiled or used in system of records would provide inaccurate, irrelevant, untimely or order to identify, detect, apprehend and violators with significant information incomplete may, when gathered, otherwise investigate persons suspected concerning the nature of the civil or grouped, and evaluated with other or known to be engaged in criminal criminal investigation or inquiry. available information, become more conduct in violation of customs and Knowledge of the facts developed pertinent as an investigation progresses. related laws. during an investigation or inquiry In addition, application of this b. Specific exemptions under 5 U.S.C. would enable violators of criminal and provision could seriously impede 552a(k)(2). Pursuant to the provisions of civil laws and regulations to learn the criminal investigators and intelligence 5 U.S.C. 552a(k)(2), the Department of extent to which the investigation or analysts in the exercise of their the Treasury hereby exempts the Pacific inquiry has progressed, and this could judgment in reporting on results Basin Reporting Network—Treasury/ provide them with an opportunity to obtained during criminal investigations. Customs .171, maintained by the United destroy evidence that would form the The Department therefore believes that States Customs Service, from the basis for prosecution or the imposition it is appropriate to exempt the PBRN provisions of 5 U.S.C. 552a(c)(3), (d)(1), of civil sanctions. In addition, system of records from the provisions of (2), (3) and (4), (e)(1) and (4)(G), (H) and knowledge gained through access to 5 U.S.C. 552a(e)(5). (I) and (f). investigatory material could alert a (k) 5 U.S.C. 552a(e)(8) requires that an 1. Exempt system. The Pacific Basin violator to the need to temporarily agency make reasonable efforts to serve Reporting Network—Treasury/Customs postpone commission of the violation or notice on an individual when any .171 (PBRN), contains information of the to change the intended point where the record on the individual is made type described in 5 U.S.C. 552a(k)(2), violation is to be committed so as to available to any person under and shall be exempt from the provisions avoid detection or apprehension. compulsory legal process when such of 5 U.S.C. 552a listed in paragraph b. Further, access to investigatory material process becomes a matter of public above except as otherwise indicated would disclose investigative techniques record. The Department believes that below. and procedures which, if known, could the PBRN system of records should be 2. Reasons for exemptions. (a) 5 enable violators to structure their future exempt from this provision in order to U.S.C. 552a(e)(4)(G) and (f)(1) enable operations in such a way as to avoid avoid revealing investigative techniques individuals to be notified whether a detection or apprehension, thereby 26938 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations neutralizing investigators’ established and, accordingly, those reasons are order to promote effective law and effective investigative tools and incorporated herein by reference. enforcement it often becomes necessary procedures. In addition, investigatory (d) 5 U.S.C. 552a(c)(3) requires that an and desirable to disseminate material may contain the identity of a agency make accountings of disclosures information pertaining to such confidential source of information or of records available to individuals violations to other law enforcement other informer who would not want his named in the records at their request; agencies which have jurisdiction over identity to be disclosed for reasons of such accountings must state the date, the offense to which the information personal privacy or for fear of reprisal nature and purpose of each disclosure of relates. The Department should not be at the hands of the individual about a record and the name and address of placed in a position of having to ignore whom he supplied information. In some the recipient. The Department believes information relating to violations of law cases mere disclosure of the information that application of this provision to the not within its jurisdiction where that provided by an informer would reveal PBRN system of records would impair information comes to the attention of the identity of the informer either the ability of the Customs Service and the Department through the conduct of through the process of elimination or by other law enforcement agencies to a lawful Customs Service civil or virtue of the nature of the information conduct investigations and inquiries criminal investigation or inquiry. The supplied. If informers cannot be assured into civil and criminal violations under Department therefore believes that it is that their identities (as sources for their respective jurisdictions. Making appropriate to exempt the PBRN system information) will remain confidential, accountings available to violators would of records from the provisions of 5 they would be very reluctant in the alert those individuals to the fact that U.S.C. 552a(e)(1). future to provide information pertaining the Department or another law This is being published as a final rule to violations of criminal and civil laws enforcement authority is conducting an because the amendment to 31 CFR 1.36 and regulations, and this would investigation or inquiry into their has been published by the Department seriously compromise the ability of the activities, and such accountings could as a proposed and final determination, Department to carry out its mission. reveal the geographic location of the as noted above, and no comments were Further, application of 5 U.S.C. investigation or inquiry, the nature and received. In addition it does not impose 552a(d)(1), purpose of the investigation or inquiry any new requirements on any member (e)(4)(H) and (f)(2), (3) and (5) to the and the nature of the information of the public. The amendment in PBRN system of records would make disclosed, and the dates on which that question is the most efficient means for available attorney work products and investigation or inquiry was active. the Treasury Department to implement other documents which contain Violators possessing such knowledge its internal requirements for complying evaluations, recommendations, and would thereby be able to take with the Privacy Act. For the above discussions of ongoing civil and appropriate measures to avoid detection reasons, the Department of the Treasury criminal legal proceedings; the or apprehension by altering their finds that the expenditure of additional availability of such documents could operations, transferring their activities time and money on nonsubstantial have a chilling effect on the free flow of to other locations or destroying or administrative changes to these information and ideas within the concealing evidence which would form regulations would be unproductive. Department which is vital to the the basis for prosecution or the Accordingly, pursuant to the agency’s predecisional deliberative imposition of civil sanctions. administrative procedure provisions in process, could seriously prejudice the (e) 5 U.S.C. 552a(e)(1) requires that an 5 U.S.C. 553, the Department of the agency’s or the Government’s position agency maintain in its records only such Treasury finds good cause that prior in a civil or criminal litigation, and information about an individual as is notice and other public procedure with could result in the disclosure of relevant and necessary to accomplish a respect to this rule are impracticable investigatory material which should not purpose of the agency required to be and unnecessary and finds good cause be disclosed for the reasons stated accomplished by statute or executive for making this rule effective less than above. It is the belief of the Department order. The term ‘‘maintain’’ as defined 30 days after publication of this that, in both civil actions and criminal in 5 U.S.C. 552a(a)(3) includes ‘‘collect’’ document in the Federal Register. prosecutions, due process will assure and ‘‘disseminate.’’ At the time that It has been determined that this rule that individuals have a reasonable information is collected by the does not constitute a ‘‘significant opportunity to learn of the existence of, Department there is often insufficient regulatory action’’ Departmental and to challenge, investigatory records time to determine whether the experience indicates that the rule does and related materials which are to be information is relevant and necessary to not have an annual effect on the used in legal proceedings. accomplish a purpose of the economy of $100 million or more; does (c) 5 U.S.C. 552a(d)(2)(3) and (4), Department; in many cases information not create a serious inconsistency or (e)(4)(H) and (f)(4), which are dependent collected may not be immediately otherwise interfere with an action taken upon access having been granted to susceptible to a determination of or planned by another agency; does not records pursuant to the provisions cited whether the information is relevant and materially alter the budgetary impact of in subparagraph (b) above, enable necessary, particularly in the early entitlements, grants, user fees, or loan individuals to contest (seek amendment stages of investigation or inquiry, and in programs or rights and obligations of to) the content of records contained in many cases information which initially recipients thereof; and does not raise a system of records and require an appears to be irrelevant and novel legal or policy issues arising out agency to note an amended record and unnecessary may, upon further of legal mandates, the President’s to provide a copy of an individual’s evaluation or upon continuation of the priorities, or the regulatory principles statement (of disagreement with the investigation or inquiry, prove to have set forth in Executive Order 12866. agency’s refusal to amend a record) to particular relevance to an enforcement Pursuant to the requirements of the persons or other agencies to whom the program of the Department. Further, not Regulatory Flexibility Act, 5 U.S.C. 601– record has been disclosed. The all violations of law uncovered during a 612, it is hereby certified that these Department believes that the reasons set Customs Service investigation or regulations will not have significant forth in subparagraph (b) above are inquiry fall within the civil or criminal economic impact on a substantial equally applicable to this subparagraph, jurisdiction of the Customs Service; in number of small entities because it Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26939 concerns the implementation and Selected Reserves of the Ready Reserve. necessary and appropriate to assure the administration of the Privacy Act within The rule details operation of the operation of a consistent, effective, and the Department of the Treasury. program and seeks comments on our efficient federal program. In addition, In accordance with the provisions of plan to implement the TRSDP. the enacting legislation for the TRICARE the Paperwork Reduction Act of 1995, DATES: This rule is effective August 1, Selected Reserve Dental Program directs the Department of the Treasury has 1997. Public comments must be the Department of Defense to utilize full determined that this final rule will not received by July 15, 1997. and open competition in selecting a impose new recordkeeping, application, ADDRESSES: TRICARE Support Office contractor and to implement this reporting or other types of information (TSO)/Office of the Civilian Health and program during fiscal year 1997. Absent collection requirements. Medical Program of the Uniformed preemption of certain state and local laws on insurance regulation and other Lists of Subjects in 31 CFR Part 1 Services (OCHAMPUS), Program Development Branch; Aurora, Colorado matters, competition would be severely Privacy. 80045–6900. limited and the process substantially Part 1 of title 31 of the Code of FOR FURTHER INFORMATION CONTACT: delayed. Federal Regulations is amended as Mr. Gunther J. Zimmerman, Office of II. Rulemaking Procedures follows: the Assistant Secretary of Defense (Health Affairs), (703) 695–3331. Executive Order 12866 requires PART 1Ð[AMENDED] certain regulatory assessments for any SUPPLEMENTARY INFORMATION: 1. The authority citation for part 1 ‘‘significant regulatory action,’’ defined continues to read as follows: I. Overview of the Proposed Rule as one which would result in an annual effect on the economy of $100 million Implementation of the TRICARE Authority: 5 U.S.C. 301 and 31 U.S.C. 321. or more, or have other substantial Selected Reserve Dental Program Subpart A also issued under 5 U.S.C. 552 as impacts. amended. Subpart C also issued under 5 (TSRDP) was directed by Congress in The Regulatory Flexibility Act (RFA) U.S.C. 552a. section 705 of the National Defense requires that each Federal agency Authorization Act for Fiscal Year 1996, § 1.36Ð[Amended] prepare, and make available for public Public Law 104–106, which amended comment, a regulatory flexibility 2. Section 1.36 of subpart C is title 10, United States Code, by adding analysis when the agency issues a amended by adding the following text to section 1076b. This law directed the regulation which would have a the listing in paragraph a. 1. and b. 1. implementation of a dental program for significant impact on a substantial under the heading THE UNITED members of the Selected Reserve of the number of small entities. STATES CUSTOMS SERVICE: Ready Reserve, providing for voluntary ***** enrollment and premium sharing This is not a significant regulatory a. * * * between DoD and the enrollee. action under the provisions of Executive 1. * * * Section 702 of the 1997 National Order 12866, and it would not have a 00.171—Pacific Basin Reporting Defense Authorization Act amended significant impact on a substantial Network Title 10, U.S.C., by revising the number of small entities. ***** The interim final rule will not impose b. * * * program’s start date, requiring the program to start during fiscal year 1997 additional information collection 1. * * * requirements on the public under the 00.171—Pacific Basin Reporting and also to conform to several operational requirements. The costs of Paperwork Reduction Act of 1995 (44 Network U.S.C. Chapter 55). ***** the program will be shared between the enrollee and the government. The The Department is publishing this Dated: May 5, 1997. statute directs that a members enrolling rule as an interim final rule in order to Alex Rodriguez, in the program shall pay a share of the implement the program in a timely Deputy Assistant Secretary (Administration). premium charged for the insurance manner. Regulations involving military [FR Doc. 97–12611 Filed 5–15–97; 8:45am] coverage. affairs are exempt from the notice and BILLING CODE: 4810±25±F Dental coverage under the TSRDP will comment rulemaking procedures of the provide basic dental care, to include Administrative Procedures Act. Because diagnostic services, preventive services, this rule deals exclusively with a DEPARTMENT OF DEFENSE basic restorative services, and program for the military reserves, there emergency oral examinations. is a heightened impact on the conduct Office of the Secretary Under this approach, where possible, of affairs peculiar to military functions reservists may make use of participating of the government, and a significant 32 CFR Part 199 dental providers in their areas and reduced impact on the public. Based on [DoD 6010.8±R] benefit from the reduced copayments this, it is appropriate, as an exemption and provider submission of claims and to our normal practice of providing an RIN 0720±AA40 acceptance of contractor allowances and opportunity for prior public comment on all CHAMPUS regulations, to issue Civilian Health and Medical Program of arrangements. TSRDP eligible this rule as an interim final rule, with the Uniformed Services (CHAMPUS); beneficiaries will obtain information a subsequent opportunity for public Selected Reserve Dental Program concerning the program and the application process from the contractor. comment. Public comments are invited. AGENCY: Office of the Secretary, DoD. This interim final rule adopts the All comments will be carefully ACTION: Interim final rule. statutory preemption authority of 10 considered. A discussion of the major U.S.C., section 1103. This statute issues received by public comments will SUMMARY: This interim final rule broadly authorizes preemption of state be included with the issuance of the establishes the TRICARE Selected laws in connection with DoD contracts permanent final rule, anticipated Reserve Dental Program (TSRDP) to for medical and dental care. We have approximately 90 days after the end of provide dental care to members of the made the judgment that preemption is the comment period. 26940 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations

List of Subjects in 32 CFR Part 199 (f) Premium Payments. The enrollee (5) Emergency: Emergency oral Claims, Handicapped, Health will be responsible for a monthly examination (00130); Palliative insurance, Military personnel. premium payment in order to obtain the (emergency) treatment of dental pain- dental insurance. minor procedures (09110). Accordingly, 32 CFR Part 199 is (1) Premium payment method. The (h) Maximum Annual Cap. TSRDP amended as follows: premium payment may be collected enrollees will be subject to a maximum 1. The authority citation for part 199 pursuant to procedures established by $1,000.00 of paid allowable charges per continues to read as follows: the Assistant Secretary of Defense year. Authority: 10 U.S.C., Chapter 55.5 U.S.C. (Health Affairs). (i) Annual Review of Rates. TSRDP 301. (2) Effects of failure to make premium premiums will be determined as part of 2. Part 199 is amended by adding payments. Failure to make monthly the competitive contracting process. The § 199.21, as follows: renewal premium payments will result contractor will annually notify eligible § 199.21 TRICARE Selected Reserve in the enrollee being disenrolled from reservists of the TSRDP premium rates. Dental Program (TSRDP). the TSRDP and subject to lock-out (j) Authorized Providers. The TSRDP (a) Purpose. The TSRDP is a premium period of 12 months. Following this enrollee may seek covered services from based indemnity dental insurance period of time, eligible reservists will be any provider who is fully licensed and coverage program that will be available able to enroll if they so choose. approved to provide dental care in the to members of the Selected Reserve of (3) Member’s share of premiums. The state where the provider is located. the Ready Reserve. Dental coverage will cost of the TSRDP monthly premium (k) Benefit Payment. Enrollees are not be available only to members of the will be shared between the Government required to utilize the special network Selected Reserve, no family coverage and the enrollee. Interested eligible of dental providers established by the will be offered. Benefits are limited to reservists may contact the dental TSRDP contractor. For enrollees who do preventive, restorative and emergency contractor to obtain the enrollee use this network, however, providers care. Premium costs for this coverage premium cost. The members’s share shall not balance bill any amount in will be shared by the enrollee and the may not exceed $25 per month. excess of the maximum payment government. (g) Plan Benefits. The TSRDP will allowable by the TSRDP. Enrollees (b) General provisions. The TSRDP is provide basic dental coverage, to using non-network providers may be authorized by 10 U.S.C. 1076b. include diagnostic services, preventive balanced billed such as amount. The (c) Definitions. Except as may be services, basic restorative services, and maximum payment allowable by the specifically provided in this section, to emergency oral examinations. The TSRDP (minus the appropriate cost- the extent terms defined in §§ 199.2 and following is the TSRDP covered dental share) will be the lesser of: 199.13(b) are relevant to the benefit (using the American Dental (1) Billed charges; or administration of the TRICARE Selected Association, The Council on Dental Care (2) Usual, Customary and Reasonable Reserved Dental Program, the Program’s Code On Dental Procedures rates, in which the customary rate is definitions contained in those sections and Nomenclature): calculated at the 85th percentile of shall apply to the TSRDP as they do to (1) Diagnostic: Comprehensive oral billed charges in that geographic area, as CHAMPUS and the active duty examination (00150), and Periodic oral measured in an undiscounted charge dependents dental plan. examination (00120), Intraoral-complete profile in 1995 or later for that (d) Eligibility and enrollment—(1) series (including bitewings) (00210); geographic area (as defined by three- Eligibility. Enrollment in the TRICARE Intraoral-periapical-first film (00220); digit zip code). Selected Reserve Dental Program is Intraoral-periapical-each additional film (l) Appeal and Hearing Procedures. open to members of the Selected (00230); Bitewings-single film (00270); All levels of appeals and grievances Reserve of the Ready Reserve. Bitewings-two films (00272); Bitewings- established by the Contractor for (2) Notification of eligibility. The four films (00274); Panoramic film internal review shall be exhausted prior contractor will notify persons eligible to (00330; Pulp Vitality Tests (00460). to forwarding to OCHAMPUS for a final receive dental benefits under the (2) Preventive: Prophylaxis-adult review. Procedures comparable to those TRICARE Selected Reserve Dental (limit—two per year) (01110); Topical established under § 199.13(h) shall Program. application of fluoride (excluding apply. (3) Election of Coverage. Following prophylaxis)—adult (01204). (m) Preemption of State Laws. this notification, interested reservists (3) Restorative: Amalgam-one surface, Pursuant to 10 U.S.C. 1103, any state or may elect to enroll. In order to obtain permanent (02140); Amalgam-two local law or regulation relating to health dental coverage, written election by surfaces, permanent (02150); Amalgam- or dental insurance, prepaid health or eligible beneficiary must be made. three surfaces; permanent (02160); dental plans, or other health or dental (4) Enrollment. Enrollment in the Amalgam-four or more surfaces, care delivery, administration, and TRICARE Selected Reserve Dental permanent (02161); Resin-one surface, financing methods is preempted and Program is voluntary and will be anterior (02330); Resin-two surfaces, does not apply in connection with the accomplished by submission of an anterior (02331); Resin-three surfaces, TRICARE Selected Reserve Dental application to the TSRDP contractor. anterior (02332); Resin-four or more Program contract. Any such law, or (5) Period of coverage. TRICARE surfaces or involving incisal angle regulation pursuant to such law, is Selected Reserve Dental Program (anterior) (02335); Pin retention-per without any force or effect, and State or coverage is terminated on the last day of tooth, in addition to restoration (02951). local governments have no legal the month in which the member is (4) Oral Surgery: Single tooth (07110); authority to enforce them in relation to discharged, transferred to the Individual Each additional tooth (07120); Root the TRICARE Selected Reserve Dental Ready Reserve, Standby Reserve, or removal-exposed roots (07130); Surgical Program contract. (However, the Retired Reserve, or ordered to active removal of erupted tooth requiring Department of Defense may, by contract, duty for a period of more than 30 days. evaluation of mucoperiosteal flap and establish legal obligations on the part of (e) Premium sharing. The Government removal of bone and/or section of tooth the TRICARE Selected Reserve Dental and the enrollee will share in the (07210); Surgical removal of residual Program contractor to conform with monthly premium cost. tooth roots (cutting procedure) (07250). requirements similar or identical to Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26941 requirements of State or local laws or Pesticide Programs, Environmental Napa cabbage at 0.025 part per million regulations.) Protection Agency, 401 M St., SW., (ppm). This tolerance will expire and be (n) Director, OCHAMPUS. The Washington, DC 20460. In person, bring revoked by EPA on December 31, 1998. Director, OCHAMPUS, may establish a copy of objections and hearing After December 31, 1998, EPA will other rules and procedures for the requests to Rm. 1132, CM #2, 1921 publish a document in the Federal administration of the TRICARE Selected Jefferson Davis Hwy., Arlington, VA. Register to remove the revoked Reserve Dental Program. A copy of objections and hearing tolerance from the Code of Federal Dated: May 12, 1997. requests filed with the Hearing Clerk Regulations. L.M. Bynum, may also be submitted electronically by I. Background and Statutory Authority sending electronic mail (e-mail) to: opp- Alternate OSD Federal Register Liaison The Food Quality Protection Act of Officer, Department of Defense. [email protected]. Copies of objections and hearing requests must be 1996 (FQPA) (Pub. L. 104-170) was [FR Doc. 97–12871 Filed 5–15–97; 8:45 am] submitted as an ASCII file avoiding the signed into law August 3, 1996. FQPA BILLING CODE 5000±04±M use of special characters and any form amends both the Federal Food, Drug of encryption. Copies of objections and and Cosmetic Act (FFDCA), 21 U.S.C. hearing requests will also be accepted 301 et seq., and the Federal Insecticide, ENVIRONMENTAL PROTECTION on disks in WordPerfect 5.1 file format Fungicide, and Rodenticide Act AGENCY or ASCII file format. All copies of (FIFRA), 7 U.S.C. 136 et seq. Among objections and hearing requests in other things, FQPA amends FFDCA to 40 CFR Part 180 electronic form must be identified by bring all EPA pesticide tolerance-setting [OPP±300490; FRL±5718±1] the docket control number [OPP– activities under section 408 with a new 300490]. No Confidential Business safety standard and new procedures. RIN 2070-AB78 Information (CBI) should be submitted These activities are described below and through e-mail. Electronic copies of discussed in greater detail in the final Emamectin Benzoate; Pesticide rule establishing the time-limited Tolerances for Emergency Exemptions objections and hearing requests on this rule may be filed online at many Federal tolerance associated with the emergency AGENCY: Environmental Protection Depository Libraries. exemption for use of propiconazole on Agency (EPA). sorghum (61 FR 58135, November 13, FOR FURTHER INFORMATION CONTACT: By 1996) (FRL–5572–9). ACTION: Final rule. mail: Olga Odiott, Registration Division New section 408(b)(2)(A)(i) of the (7505W), Office of Pesticide Programs, SUMMARY: This regulation establishes a FFDCA allows EPA to establish a Environmental Protection Agency, 401 tolerance (the legal limit for a pesticide time-limited tolerance for residues of M St., SW., Washington, DC 20460. the insecticide emamectin benzoate: 4′′- chemical residue in or on a food) only ′′ Office location, telephone number, and if EPA determines that the tolerance is epi-methylamino-4 -deoxyavermectin e-mail: Sixth Floor, Crystal Station #1, B1 benzoate in or on the raw ‘‘safe.’’ Section 408(b)(2)(A)(ii) defines 2800 Jefferson Davis Highway, ‘‘safe’’ to mean that ‘‘there is a agricultural commodities head and Arlington, VA. (703) 308-6418, e-mail: Napa (chinese) cabbage in connection reasonable certainty that no harm will [email protected]. result from aggregate exposure to the with EPA’s granting an emergency SUPPLEMENTARY INFORMATION: The exemption under section 18 of the pesticide chemical residue, including regulations governing section 18 require all anticipated dietary exposures and all Federal Insecticide, Fungicide, and that the Agency publish a notice of Rodenticide Act authorizing use of the other exposures for which there is receipt in the Federal Register and reliable information.’’ This includes pesticide on head and Napa cabbage in solicit public comment on an exposure through drinking water and in Hawaii. The tolerance will expire and is application for a specific exemption residential settings, but does not include revoked on December 31, 1998. proposing the use of an unregistered occupational exposure. Section DATES: This regulation becomes chemical [40 CFR 166.24]. Emamectin 408(b)(2)(C) requires EPA to give special effective May 16, 1997. Objections and benzoate is an active ingredient not consideration to exposure of infants and requests for hearings must be received currently found in any registered children to the pesticide chemical by EPA on or before July 15, 1997. product. Accordingly, a notice of receipt residue in establishing a tolerance and ADDRESSES: Written objections and of this request was published in the to ‘‘ensure that there is a reasonable hearing requests, identified by the Federal Register on April 11, 1997. One certainty that no harm will result to docket control number, [OPP–300490], comment was received regarding the infants and children from aggregate must be submitted to: Hearing Clerk requirement for a groundwater exposure to the pesticide chemical (1900), Environmental Protection monitoring study. EPA is not requiring residue....’’ Agency, Rm. M3708, 401 M St., SW., such study under section 18. Based on Section 18 of FIFRA authorizes EPA Washington, DC 20460. Fees the available environmental fate data, to exempt any Federal or State agency accompanying objections and hearing the Agency has determined that the use from any provision of FIFRA, if EPA requests shall be labeled ‘‘Tolerance proposed by this emergency exemption determines that ‘‘emergency conditions Petition Fees’’ and forwarded to: EPA will not cause unreasonable adverse exist which require such exemption.’’ Headquarters Accounting Operations effects on the environment. EPA, on its This provision was not amended by Branch, OPP (Tolerance Fees), P.O. Box own initiative, pursuant to section FQPA. EPA has established regulations 360277M, Pittsburgh, PA 15251. A copy 408(e) and (l)(6) of the Federal Food, governing such emergency exemptions of any objections and hearing requests Drug, and Cosmetic Act (FFDCA), 21 in 40 CFR part 166. Section 408(l)(6) of filed with the Hearing Clerk identified U.S.C. 346a(e) and (l)(6), is establishing the FFDCA requires EPA to establish a by the docket control number, [OPP– a tolerance for residues of the time-limited tolerance or exemption 300490], must be submitted to: Public insecticide 4′′-epi-methylamino-4′′- from the requirement for a tolerance for Information and Records Integrity deoxyavermectin B1 benzoate, also pesticide chemical residues in food that Branch, Information Resources and referred to in this document as will result from the use of a pesticide Services Division (7506C), Office of emamectin benzoate, in or on head and under an emergency exemption granted 26942 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations by EPA under section 18 of FIFRA. Such emamectin benzoate in or on cabbage. In For many of these studies, a dose tolerances can be established without doing so, EPA considered the new safety response relationship can be providing notice or period for public standard in FFDCA section 408(b)(2), determined, which provides a dose that comment. and decided that the necessary tolerance causes adverse effects (threshold effects) Because decisions on section 18- under FFDCA section 408(l)(6) would be and doses causing no observed effects related tolerances must proceed before consistent with the new safety standard (the ‘‘no-observed effect level’’ or EPA reaches closure on several policy and with FIFRA section 18. This ‘‘NOEL’’). issues relating to interpretation and tolerance will permit the marketing of Once a study has been evaluated and implementation of the FQPA, EPA does head and Napa cabbage treated in the observed effects have been not intend for its actions on such accordance with the provisions of the determined to be threshold effects, EPA tolerances to set binding precedents for section 18 emergency exemption. generally divides the NOEL from the the application of section 408 and the Consistent with the need to move study with the lowest NOEL by an new safety standard to other tolerances quickly on the emergency exemption in uncertainty factor (usually 100 or more) and exemptions. order to address an urgent non-routine to determine the Reference Dose (RfD). The RfD is a level at or below which II. Emergency Exemption for situation and to ensure that the resulting daily aggregate exposure over a lifetime Emamectin Benzoate on Head and food is safe and lawful, EPA is issuing will not pose appreciable risks to Napa Cabbage and FFDCA Tolerances this tolerance without notice and opportunity for public comment under human health. An uncertainty factor The Hawaii Department of section 408(e), as provided in section (sometimes called a ‘‘safety factor’’) of Agriculture has requested a specific 408(l)(6). Although this tolerance will 100 is commonly used since it is exemption for the use of emamectin expire and is revoked on December 31, assumed that people may be up to 10 benzoate on head and Napa cabbage to 1998, under FFDCA section 408(l)(5), times more sensitive to pesticides than control the diamondback moth (Plutella residues of the pesticide not in excess the test animals, and that one person or xylostella). The Applicant states that of the amounts specified in the subgroup of the population (such as although there are numerous tolerance remaining in or on head and infants and children) could be up to 10 insecticides registered for use against Napa cabbage after that date will not be times more sensitive to a pesticide than the diamondback moth (DBM) on unlawful, provided the pesticide is another. In addition, EPA assesses the cabbage in Hawaii, these pesticides do applied during the term of, and in potential risks to infants and children not provide effective control. DMB has accordance with all the conditions of, based on the weight of the evidence of become resistant to most of these section 18 of FIFRA. EPA will take the toxicology studies and determines insecticides and label restrictions on action to revoke this tolerance earlier if whether an additional uncertainty factor others render their control inadequate any experience with, scientific data on, is warranted. Thus, an aggregate daily for this pest. Growers using these or other relevant information on this exposure to a pesticide residue at or products have experienced significant pesticide indicate that the residues are below the RfD (expressed as 100% or yield reductions due to feeding damage not safe. less of the RfD) is generally considered by DBM larvae. Bacillus thuringiensis EPA has not made any decisions acceptable by EPA. EPA generally uses (Bt) based insecticides were once very about whether emamectin benzoate the RfD to evaluate the chronic risks effective, but in 1990 scientists at the meets EPA’s registration requirements posed by pesticide exposure. For shorter University of Hawaii documented DBM for use on head and Napa cabbage or term risks, EPA calculates a margin of resistance to first generation Bt whether a permanent tolerance for this exposure (MOE) by dividing the products; more recently these same use would be appropriate. This estimated human exposure into the scientists have documented a 20-fold tolerance does not serve as a basis for NOEL from the appropriate animal resistance to Bt toxin CryIC. Based on registration of emamectin benzoate by a study. Commonly, EPA finds MOEs these trends, it is expected that the DBM State for special local needs under lower than 100 to be unacceptable. This will quickly develop resistance to these FIFRA section 24(c). Nor does this 100-fold MOE is based on the same second generation Bt products if they tolerance serve as the basis for any State rationale as the 100-fold uncertainty are overused. Alternative control other than Hawaii to use this pesticide factor. practices include the use of tolerant on this crop under section 18 of FIFRA Lifetime feeding studies in two cabbage varieties, natural enemy without following all provisions of species of laboratory animals are augmentation, and the application of section 18 as identified in 40 CFR part conducted to screen pesticides for overhead irrigation. Management 166. For additional information cancer effects. When evidence of programs incorporating these practices regarding the emergency exemption for increased cancer is noted in these have been adopted by many cabbage emamectin benzoate, contact the studies, the Agency conducts a weight growers; however the growers continued Agency’s Registration Division at the of the evidence review of all relevant to experience moderate to excessive address provided above. toxicological data including short term yield losses due to DBM injury. Thus, and mutagenicity studies and structure without an effective control such as III. Risk Assessment and Statutory activity relationship. Once a pesticide emamectin benzoate, cabbage growers in Findings has been classified as a potential human Hawaii will likely suffer severe EPA performs a number of analyses to carcinogen, different types of risk economic losses. EPA has authorized determine the risks from aggregate assessments (e.g., linear low dose under FIFRA section 18 the use of exposure to pesticide residues. First, extrapolations or MOE calculation based emamectin benzoate on cabbage for EPA determines the toxicity of on the appropriate NOEL will be carried control of the DBM. After having pesticides based primarily on out based on the nature of the reviewed the submission, EPA concurs toxicological studies using laboratory carcinogenic response and the Agency’s that emergency conditions exist for this animals. These studies address many knowledge of its mode of action. state. adverse health effects, including (but In examining aggregate exposure, As part of its assessment of this not limited to) reproductive effects, FFDCA section 408 requires that EPA emergency exemption, EPA assessed the developmental toxicity, toxicity to the take into account available and reliable potential risks presented by residues of nervous system, and carcinogenicity. information concerning exposure from Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26943 the pesticide residue in the food in concerning the variability of the and a chronic risk assessment is not question, residues in other foods for sensitivities of major identifiable required for occupational exposures. which there are tolerances, residues in subgroups of consumers, including 4. Cancer risk. The carcinogenicity groundwater or surface water that is infants and children. The nature of the studies for emamectin benzoate have consumed as drinking water, and other toxic effects caused by emamectin not been fully evaluated, therefore a non-occupational exposures through benzoate are discussed below. cancer risk assessment is not possible at pesticide use in gardens, lawns, or 1. Acute toxicity. The Agency has this time. buildings (residential and other indoor determined that the NOEL of 0.075 mg/ B. Exposures and Risks uses). Dietary exposure to residues of a kg/day from a 15-day feeding study in pesticide in a food commodity are mice should be used to evaluate acute In examining aggregate exposure, estimated by multiplying the average dietary risk. At the lowest effect level FQPA directs EPA to consider available daily consumption of the food forms of (LEL) of 0.10 mg/kg/day, there were information concerning exposures from that commodity by the tolerance level or clinical signs of tremors and histological the pesticide residue in food and all the anticipated pesticide residue level. evidence of degenerative effects in the other non-occupational exposures. The The Theoretical Maximum Residue sciatic nerve. This acute dietary risk primary non-food sources of exposure Contribution (TMRC) is an estimate of assessment evaluates neurological risks the Agency looks at include drinking water (whether from groundwater or the level of residues consumed daily if to all population subgroups. surface water), and exposure through each food item contained pesticide 2. Short- and intermediate-term pesticide use in gardens, lawns, or residues equal to the tolerance. The dermal and inhalation toxicity. The buildings (residential and other indoor TMRC is a ‘‘worst case’’ estimate since Agency has determined that a NOEL of uses). In evaluating food exposures, EPA it is based on the assumptions that food 2.4 mg/kg/day from a 21-day dermal contains pesticide residues at the takes into account varying consumption toxicity study in rabbits should be used patterns of major identifiable subgroups tolerance level and that 100% of the to assess risks from short and crop is treated by pesticides that have of consumers, including infants and intermediate-term dermal toxicity. At children. established tolerances. If the TMRC the LEL of 6.0 mg/kg/day, there were exceeds the RfD or poses a lifetime 1. From food and feed uses. axonal degenerative lesions in the Emamectin benzoate is not currently cancer risk that is greater than sciatic nerve and spinal cord. For the approximately one in a million, EPA registered for food uses and no short- and intermediate-term inhalation tolerances have been established. Risk attempts to derive a more accurate toxicity, the Agency has determined that exposure estimate for the pesticide by assessments were conducted by EPA to a NOEL of 0.075 mg/kg/day from the 15- assess dietary exposures and risks from evaluating additional types of day feeding study in mice [same study information (anticipated residue data emamectin benzoate as follows: used in the acute dietary risk i. Acute risk. Acute dietary risk and/or percent of crop treated data) assessment] should be used to assess which show, generally, that pesticide assessments are performed for a food- risks for occupational scenarios since no use pesticide if a toxicological study has residues in most foods when they are suitable inhalation toxicity study is eaten are well below established indicated the possibility of an effect of available. At the LEL of 0.10 mg/kg/day, concern occurring as a result of a one tolerances. there were tremors, and histological Percent of crop treated estimates are day or single exposure. degenerative effects in the sciatic nerve. derived from federal and private market Since emamectin benzoate is not 3. Chronic risk. The Agency has survey data. Typically, a range of currently registered for food uses, the established a provisional RfD for estimates are supplied and the upper use proposed by this Section 18 is the emamectin benzoate at 0.000083 mg/kg/ end of this range is assumed for the only commodity considered in the acute day. The provisional RfD was based on exposure assessment. By using this dietary risk assessment. In conducting one-year and 90-day feeding studies in upper end estimate of percent of crop this risk assessment, the Agency used dogs with a NOEL of 0.25 mg/kg/day treated, the Agency is reasonably certain the tolerance value of 0.025 ppm and and an uncertainty factor of 3000 based that exposure is not understated for any assumed 100% crop treated. Thus, the on severe neurological effects, the steep significant subpopulation group. acute dietary risk estimates are dose response in the dog studies, data Further, regional consumption considered conservative and therefore gaps in the chronic studies in mice and information is taken into account protective of any acute exposure rats, and the extra-sensitivity for infants through EPA’s computer-based model scenario. The acute dietary risks from and children which was seen in the for evaluating the exposure of this proposed Section 18 use do not developmental neurotoxicity study. At significant subpopulations including exceed the Agency’s level of concern. the LEL of 0.50 mg/kg/day, effects in several regional groups, to pesticide The resulting MOEs for the different both sexes consist of axonal residues. population subgroups ranged from 150 degeneration in the pons; medulla, to 540. Further refinement using IV. Aggregate Risk Assessment and sciatic, sural, and tibial; whole body anticipated residue values and percent Determination of Safety tremors; stiffness of hind legs; spinal crop-treated data would result in lower Consistent with section 408(b)(2)(D), cord axonal degeneration; and muscle acute dietary risk estimates. EPA has reviewed the available fiber degeneration in females. At the ii. Chronic risk. For the chronic scientific data and other relevant highest dose tested, 0.75 mg/kg/day, dietary risk assessment, the Agency information in support of this action. males were sacrificed after 7 weeks, and used the tolerance value of 0.025 ppm, additional effects were mydriasis, and assumed that all cabbage consumed A. Toxicological Profile cellular degeneration of retina, axonal in the U.S. will contain residues at the EPA has evaluated the available degeneration of optic nerve, decreased tolerance level. Thus, in making a safety toxicity data and considered its validity, body weight gain and decreased food determination for this tolerance, EPA is completeness, and reliability as well as consumption. taking into account a conservative the relationship of the results of the The Agency has also determined that exposure assessment. With this Section studies to human risk. EPA has also a non-dietary chronic toxicity endpoint 18 use of emamectin benzoate on considered available information does not exist for emamectin benzoate cabbage, the TMRC estimates 26944 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations represented 0% to 4% of the RfD (all understanding common mechanisms of not expect the aggregate acute risk (food TMRCs were <0.00001 mg/kg/day). The toxicity and conducting cumulative risk + water) to exceed the Agency’s level of EPA has therefore concluded that the assessments. For most pesticides, concern. chronic dietary risks from the proposed although the Agency has some 2. Chronic risk. Using the Section 18 use do not exceed our level information in its files that may turn out conservative TMRC exposure of concern. to be helpful in eventually determining assumptions described above, EPA has 2. From drinking water. No Maximum whether a pesticide shares a common concluded that exposure to emamectin Concentration Level has been mechanism of toxicity with any other benzoate from food will utilize 1% of established for residues of emamectin substances, EPA does not at this time the RfD for the U.S. population. EPA benzoate in drinking water. No Health have the methodologies to resolve the generally has no concern for exposures Advisory Levels for emamectin benzoate complex scientific issues concerning below 100% of the RfD because the RfD in drinking water have been established. common mechanism of toxicity in a represents the level at or below which Because the Agency lacks sufficient meaningful way. EPA has begun a pilot daily aggregate dietary exposure over a water-related exposure data to complete process to study this issue further lifetime will not pose appreciable risks a comprehensive drinking water risk through the examination of particular to human health. Despite the potential assessment for many pesticides, EPA classes of pesticides. The Agency hopes for exposure to emamectin benzoate in has commenced and nearly completed a that the results of this pilot process will drinking water, EPA does not expect the process to identify a reasonable yet increase the Agency’s scientific aggregate exposure to exceed 100% of conservative bounding figure for the understanding of this question such that the RfD. EPA concludes that there is a potential contribution of water related EPA will be able to develop and apply reasonable certainty that no harm will exposure to the aggregate risk posed by scientific principles for better result from aggregate exposure to a pesticide. In developing the bounding determining which chemicals have a emamectin benzoate residues. figure, EPA estimated residue levels in common mechanism of toxicity and water for a number of specific pesticides E. Aggregate Risks and Determination of evaluating the cumulative effects of Safety for Infants and Children using various data sources. The Agency such chemicals. The Agency anticipates, then applied the estimated residue however, that even as its understanding FFDCA section 408 provides that EPA levels, in conjunction with appropriate of the science of common mechanisms shall apply an additional tenfold margin toxicological endpoints (RfD’s or acute increases, decisions on specific classes of safety for infants and children in the dietary NOEL’s) and assumptions about of chemicals will be heavily dependent case of threshold effects to account for body weight and consumption, to on chemical specific data, much of pre- and post-natal toxicity and the calculate, for each pesticide, the which may not be presently available. completeness of the database unless increment of aggregate risk contributed Although at present the Agency does EPA determines that a different margin by consumption of contaminated water. not know how to apply the information of safety will be safe for infants and While EPA has not yet pinpointed the in its files concerning common children. Margins of safety are appropriate bounding figure for mechanism issues to most risk incorporated into EPA risk assessments exposure from contaminated water, the assessments, there are pesticides as to either directly through use of a MOE ranges the Agency is continuing to which the common mechanism issues analysis or through using uncertainty examine are all below the level that can be resolved. These pesticides (safety) factors in calculating a dose would cause emamectin benzoate to include pesticides that are level that poses no appreciable risk to exceed the RfD if the tolerance being toxicologically dissimilar to existing humans. EPA believes that reliable data considered in this document is granted. chemical substances (in which case the support using the standard MOE and The Agency has therefore concluded Agency can conclude that it is unlikely uncertainty factor (usually 100 for that the potential exposures associated that a pesticide shares a common combined inter- and intra-species with emamectin benzoate in water, even mechanism of activity with other variability)) and not the additional at the higher levels the Agency is substances) and pesticides that produce tenfold margin of exposure/uncertainty considering as a conservative upper a common toxic metabolite (in which factor when EPA has a complete data bound, would not prevent the Agency case common mechanism of activity base under existing guidelines and from determining that there is a will be assumed). when the severity of the effect in infants reasonable certainty of no harm if the EPA does not have, at this time, or children or the potency or unusual tolerance is granted. available data to determine whether toxic properties of a compound do not 3. From non-dietary exposure. emamectin benzoate has a common raise concerns regarding the adequacy of Emamectin benzoate is not currently mechanism of toxicity with other the standard margin of exposure/safety registered for non-food uses. substances or how to include this factor. pesticide in a cumulative risk In assessing the potential for C. Cumulative Exposure to Substances assessment. For the purposes of this additional sensitivity of infants and with Common Mechanism of Toxicity tolerance action, therefore, EPA has not children to residues of emamectin Section 408(b)(2)(D)(v) requires that, assumed that emamectin benzoate has a benzoate, EPA considered data from when considering whether to establish, common mechanism of toxicity with developmental toxicity studies in rats modify, or revoke a tolerance, the other substances. and rabbits, developmental Agency consider ‘‘available neurotoxicity studies in rats, and a two- information’’ concerning the cumulative D. Aggregate Risks and Determination of generation reproductive toxicity study effects of a particular pesticide’s Safety for U.S. Population in rats. The developmental toxicity residues and ‘‘other substances that 1. Acute risk. For the U.S. population, studies are designed to evaluate adverse have a common mechanism of toxicity.’’ the calculated dietary (food only) MOE effects on the developing organism The Agency believes that ‘‘available value is 250. This MOE value does not resulting from maternal pesticide information’’ in this context might exceed the Agency’s level of concern for exposure during prenatal development. include not only toxicity, chemistry, acute dietary exposures. Despite the Reproduction studies provide and exposure data, but also scientific potential for exposure to emamectin information relating to pre- and post- policies and methodologies for benzoate from drinking water, EPA does natal effects from exposure to the Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26945 pesticide, information on the treated with tolerance level residues on pending EPA’s determination of reproductive capability of mating all treated crops consumed, resulting in emamectin benzoate regulable residues animals, and data on systemic toxicity. an over-estimate of dietary exposure. of concern. 1. Developmental toxicity studies.—a. Despite the potential for exposure to C. Magnitude of Residues Developmental toxicity study in rats. emamectin benzoate in drinking water, The maternal (systemic) NOEL was 2 EPA does not expect the aggregate acute Regulable residues of emamectin mg/kg/day, based on decreased weight exposure (food + water) to result in an benzoate are not expected to exceed gain at the lowest observed effect level MOE of less than 100. The large acute 0.025 ppm in/on cabbage as a result of (LOEL) of 4 mg/kg/day. The dietary MOE calculated for females 13+ this Section 18 use. Secondary residues developmental (fetal) NOEL was 4 mg/ years old provides assurance that there are not expected in animal commodities kg/day, based on altered growth and is a reasonable certainty of no harm for as no feed items are associated with this extra ribs at the LOEL of 8 mg/kg/day. both females 13+ years and the pre-natal Section 18 use. b. Developmental neurotoxicity study development of infants. D. International Residue Limits in rats. The maternal (systemic) NOEL 5. Chronic risk. Using the was 2.5 mg/kg/day. The developmental conservative exposure assumptions No CODEX, Canadian, or Mexican (pup) NOEL was 0.10 mg/kg/day [lowest described above, EPA has concluded maximum residue limits/tolerances dose tested], based on neurotoxicity that the percent of the RfD that will be have been established for emamectin findings at the LOEL of 0.60 mg/kg/day. utilized by dietary (food only) exposure benzoate at this time. c. Developmental study in rabbits. to residues of emamectin benzoate VI. Conclusion The maternal (systemic) NOEL was 3 ranges from 0% for non-nursing infants Therefore, a tolerance in connection mg/kg/day, based on decreased weight less than one year old, up to 1% for with the FIFRA section 18 emergency gain and neurotoxicity at the LOEL of 6 non-nursing infants (<1 year old), exemptions is established for residues of mg/kg/day. The developmental (fetal) children (1-6 years old), and children (7- emamectin benzoate in or on head and NOEL was 6 mg/kg/day [highest dose 12 years old). Despite the potential for Napa cabbage at 0.025 ppm. tested]. exposure to emamectin benzoate in 2. Reproductive toxicity studies.—a. drinking water, EPA does not expect the VII. Objections and Hearing Requests Reproductive toxicity study in rats. The aggregate exposure to exceed 100% of The new FFDCA section 408(g) parental (systemic) NOEL was 0.6 mg/ the RfD. Therefore, taking into account kg/day, based on neurological lesions provides essentially the same process the completeness and reliability of the for persons to ‘‘object’’ to a tolerance and decreased weight gain at the LOEL toxicity data and the conservative of 1.8 mg/kg/day. The developmental regulation issued by EPA under new exposure assessment, EPA concludes section 408(e) and (l)(6) as was provided (pup) NOEL was 0.6 mg/kg/day, based that there is a reasonable certainty that on neurological effects at the LEL of 1.8 in the old section 408 and in section no harm will result to infants and 409. However, the period for filing mg/kg/day. children from aggregate exposure to The reproductive NOEL was 0.8 mg/ objections is 60 days, rather than 30 emamectin benzoate residues. kg/day, based on decreased fecundity days. EPA currently has procedural and fertility indices at the LEL of 1.8 V. Other Considerations regulations which govern the mg/kg/day. submission of objections and hearing 3. Pre- and post-natal sensitivity. A. Metabolism in Plants and Animal requests. These regulations will require Based on the results of the Plant metabolism studies for some modification to reflect the new developmental neurotoxicity study for emamectin benzoate on cabbage, head law. However, until those modifications emamectin benzoate, the developmental lettuce, and sweet corn have been can be made, EPA will continue to use findings [neurotoxicity], which may be submitted to the Agency, however, the those procedural regulations with due to pre- or/and post-natal extra- studies have not been fully evaluated to appropriate adjustments to reflect the sensitivity, occurred in the absence of determine the residue(s) of concern. For new law. maternal effects. These results indicate the purposes of this Section 18, the Any person may, by July 15, 1997 file extra-sensitivity for infants and children regulated residues of concern are the written objections to any aspect of this and an additional uncertainty factor of parent compound emamectin benzoate regulation (including the revocation 3 was added to the provisional RfD due (including the 4′′hylamino-4′′- provision) and may also request a to these results. deoxyavermectin B1A and the 4′′-epi- hearing on those objections. Objections Based on the reproductive toxicity methylamino-4′′-deoxyavermectin B1B and hearing requests must be filed with study discussed above, for emamectin components), its delta-8,9-isomer, and the Hearing Clerk, at the address given benzoate there does not appear to be a the degradation products 4′′-deoxy-4′′- above (40 CFR 178.20). A copy of the special sensitivity for post-natal effects. epi-(N-formyl)-avermectin B1, 4′′-deoxy- objections and/or hearing requests filed The NOELs and LOELs for both parental 4′′-epi-(N-formyl-N-methyl)-avermectin with the Hearing Clerk should be animals and offspring occur at the same B1, and 4′′-deoxy-4′′-epi-amino submitted to the OPP docket for this doses of 0.6 and 1.8 mg/kg/day, avermectin B1. rulemaking. The objections submitted respectively. must specify the provisions of the 4. Acute risk. The acute dietary (food B. Analytical Enforcement Methodology regulation deemed objectionable and the only) MOE for infants (< 1 year) was There is a practical analytical method grounds for the objections (40 CFR calculated to be 150, and that for for detecting and measuring levels of 178.25). Each objection must be children (1-6 years) was calculated to be emamectin benzoate in or on cabbage accompanied by the fee prescribed by 150. The acute dietary (food only) MOE with a limit of detection that allows 40 CFR 180.33(I). If a hearing is for females 13+ years old (accounts for monitoring of food with residues at or requested, the objections must include a both maternal and fetal exposure) is above the level set in this tolerance. The statement of the factual issues on which 420. These MOE calculations are based method has undergone succesful a hearing is requested, the requestor’s on the NOEL (0.075 mg/kg/day) from a independent laboratory validation, but contentions on such issues, and a 15-day feeding study in mice. This risk has not been forwarded to the EPA summary of any evidence relied upon assessment also assumed 100% crop- Analytical Chemistry Laboratory by the requestor (40 CFR 178.27). A 26946 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations request for a hearing will be granted if paper form. Accordingly, in the event Under 5 U.S.C. 801(a)(1)(A) of the the Administrator determines that the there are objections and hearing Small Business Regulatory Enforcement material submitted shows the following: requests, EPA will transfer any copies of Fairness Act of 1996 (Title II of Pub. L. There is genuine and substantial issue objections and hearing requests received 104-121, 110 Stat. 847), EPA submitted of fact; there is a reasonable possibility electronically into printed, paper form a report containing this rule and other that available evidence identified by the as they are received and will place the required information to the U.S. Senate, requestor would, if established, resolve paper copies in the official rulemaking the U.S. House of Representatives and one or more of such issues in favor of record. The official rulemaking record is the Comptroller General of the General the requestor, taking into account the paper record maintained at the Accounting Office prior to publication uncontested claims or facts to the address in ‘‘ADDRESSES’’ at the of the rule in today’s Federal Register. contrary; and resolution of the factual beginning of this document. This rule is not a ‘‘major rule’’ as issues in the manner sought by the defined by 5 U.S.C. 804(2). requestor would be adequate to justify IX. Regulatory Assessment the action requested (40 CFR 178.32). Requirements List of Subjects in 40 CFR Part 180 Information submitted in connection Under Executive Order 12866 (58 FR Environmental protection, with an objection or hearing request 51735, October 4, 1993), this action is Administrative practice and procedure, may be claimed confidential by marking not a ‘‘significant regulatory action’’ Agricultural commodities, Pesticides any part or all of that information as and, since this action does not impose and pests, Reporting and record keeping Confidential Business Information (CBI). any information collection requirements requirements. Information so marked will not be as defined by the Paperwork Reduction Dated: May 8, 1997. disclosed except in accordance with Act, 44 U.S.C. 3501 et seq., it is not procedures set forth in 40 CFR part 2. subject to review by the Office of James Jones, A copy of the information that does not Management and Budget. In addition, Acting Director, Registration Division, Office contain CBI must be submitted for this action does not impose any of Pesticide Programs. inclusion in the public record. enforceable duty or contain any Therefore, 40 CFR Chapter I is Information not marked confidential unfunded mandate as described in the amended as follows: may be disclosed publicly by EPA Unfunded Mandates Reform Act of 1995 without prior notice. (Pub. L. 104-4), or require prior PART 180Ð[AMENDED] VIII. Public Docket consultation with State officials as specified by Executive Order 12875 (58 1. The authority citation for part 180 A record has been established for this continues to read as follows: rulemaking under docket control FR 58093, October 28, 1993), or special number [OPP–300490]. A public version considerations as required by Executive Authority: 21 U.S.C. 346a and 371. Order 12898 (59 FR 7629, February 16, of this record, which does not include 2. Section 180.505 is added to read as 1994). any information claimed as CBI, is follows: available for inspection from 8 a.m. to Because FFDCA section 408(l)(6) 4:30 p.m., Monday through Friday, permits establishment of this regulation § 180.505 Emamectin benzoate; tolerances excluding legal holidays. The public without a notice of proposed for residues. record is located in Room 1132 of the rulemaking, the regulatory flexibility (a) General. [Reserved] Public Information and Records analysis requirements of the Regulatory (b) Section 18 emergency exemptions. Integrity Branch, Information Resources Flexibility Act, 5 U.S.C. 604(a), do not A time-limited tolerance is established and Services Division (7506C), Office of apply. Nonetheless, the Agency has for residues of the insecticide Pesticide Programs, Environmental previously assessed whether emamectin benzoate: 4′′-epi- Protection Agency, Crystal Mall #2, establishing tolerances or exemptions methylamino-4′′-deoxyavermectin B1 1921 Jefferson Davis Highway, from tolerance, raising tolerance levels, benzoate in connection with use of the Arlington, VA. or expanding exemptions adversely pesticide under section 18 emergency The official record for this impact small entities and concluded, as exemptions granted by EPA. The rulemaking, as well as the public a generic matter, that there is no adverse tolerance will expire and is revoked on version, as described above, is kept in impact. (46 FR 24950, May 4, 1981). the date specified in the following table.

Expiration/ Revocation Commodity Parts per million Date

Cabbage (head and Napa) ...... 0.025 December 31, 1998.

(c) Tolerances with regional ENVIRONMENTAL PROTECTION SUMMARY: This regulation establishes restrictions. [Reserved] AGENCY tolerances for residues of the (d) Indirect or inadvertent residues. nematicide, insecticide, and fungicide, 40 CFR Part 180 [Reserved] carbon disulfide (Chemical Code [FR Doc. 97–12787 Filed 5–15–97; 8:45 am] Number 16401 and CAS Number 75– [OPP±300487; FRL±5716±8] 15–0), in or on the food commodities BILLING CODE 6560±50±F almond nutmeat, almond hulls, Carbon Disulfide; Pesticide Tolerances peaches, and plums (fresh prunes) from the application of sodium AGENCY: Environmental Protection tetrathiocarbonate (Chemical Code Agency (EPA). Number 128904 and CAS Number 7345–69–9). Entek Corporation ACTION: Final rule. submitted a petition to EPA under the Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26947

Federal Food, Drug, and Cosmetic Act SUPPLEMENTARY INFORMATION: In the in the spinal cord and peripheral (FFDCA) as amended by the Food Federal Register of February 12, 1997 nerves. No NOEL was determined for Quality Protection Act of 1996 (Pub. L. (62 FR 6526)(FRL–5586–5), EPA issued brain-weight effects. 104–170) requesting the tolerances. a notice pursuant to section 408(d)of the b. In a 90–day rat inhalation study DATES: This regulation becomes Federal Food, Drug, and Cosmetic Act with carbon disulfide the NOEL was 50 effective May 16, 1997. Objections and (FFDCA), 21 U.S.C. 346a(d), announcing ppm and the LEL was 300 ppm (axonal hearing requests must be received on or the filing of a pesticide tolerance swelling in the spinal cord and before July 15, 1997. petition (PP 5F4482) by Entek peripheral nerves. ADDRESSES: Written objections and Corporation, P.O. Box 458, Brea, CA c. In a 90–day mouse inhalation study hearing requests, identified by the 92622–0458 to EPA requesting that the with carbon disulfide the NOEL was 300 document control number, [OPP– Administrator amend 40 CFR part 180 ppm and the LEL was 800 ppm (lesions 300487], may be submitted to: Hearing by establishing a tolerance for residues of peripheral nerves, spinal cord, kidney Clerk (1900), Environmental Protection of the nematicide, insecticide, and and spleen). Agency, Rm. M3708, 401 M St., SW., fungicide, carbon disulfide, in or on the d. A developmental toxicity study in rats with carbon disulfide with a Washington, DC 20460. Fees food commodities almond nutmeat, maternal no-observed effect level accompanying objections shall be almond hulls, peaches, and plums (fresh (NOEL) of 100 mg/kg/day and a LEL of labeled ‘‘Tolerance Petition Fees’’ and prunes) at 0.1 parts per million (ppm) 200 mg/kg/day based on clinical signs forwarded: EPA Headquarters from the application of sodium and decreased body-weight gains and a Accounting Operations Branch, OPP tetrathiocarbonate. There were no developmental NOEL of 100 mg/kg/day (Tolerance Fees), P.O. Box 360277M, comments received in response to the and developmental LEL of 200 mg/kg/ Pittsburgh, PA 15251. A copy of any notice of filing. day, based on decreased fetal body objections and hearing requests filed Sodium tetrathiocarbonate stoichiometrically converts to carbon weight in both sexes. with the Hearing Clerk should be e. A developmental toxicity study in identified by the document control disulfide, sodium hydroxide, hydrogen sulfide and sulfur in the soil after rabbits with carbon disulfide with no number and submitted to: Public NOEL for maternal effects (the number Response and Program Resources application to the crops. Carbon disulfide is the pesticide’s active and percentage of does with 100% Branch, Field Operations Division intrauterine deaths and the percentage (7506C), Office of Pesticide Programs, compound. The data submitted in the petition of resorptions/litter [mean litter Environmental Protection Agency, 401 percentage] were increased in a dose- M St., SW., Washington, DC 20460. In and all other relevant material have been evaluated. The data listed below related manner with statistical person, bring copy of objections and significance at all dose levels for mean hearing requests to Rm. 1132, CM #2, were considered in support of these tolerances. litter percentage). The NOEL for 1921 Jefferson Davis Hwy., Arlington, developmental toxicity was 75 mg/kg/ VA. I. Toxicological Profile day with a LEL of 150 mg/kg/day based A copy of objections and hearing on increased malformations. requests filed with the Hearing Clerk 1. The toxicology data for sodium may be submitted to OPP by sending tetrathiocarbonate include: II. Aggregate Exposures a. A rat acute oral study with an LD electronic mail (e-mail) to: opp- 50 of 587 milligrams (mg)/kilogram (kg) for In examining aggregate exposure, [email protected] Copies of females and 631 mg/kg for combined FQPA directs EPA to consider available electronic objections and hearing sexes for sodium tetrathiocarbonate. The information concerning exposures from requests must be submitted as an ASCII the pesticide residue in food and all LD50 for carbon disulfide is 456 mg/kg. file avoiding the use of special b. A developmental toxicity study in other non-occupational exposures. The characters and any form of encryption. rats for sodium tetrathiocarbonate with primary non-food sources of exposure Copies of electronic objections and a maternal no-observed effect level the Agency looks at include drinking hearing requests will also be accepted (NOEL) of 150 mg/kg and a lowest effect water (whether from groundwater or on disks in WordPerfect 5.1 file format level (LEL) of 400 mg/kg (death) and a surface water), and exposure through or ASCII file format. All copies of developmental NOEL of 450 mg/kg. pesticide use in gardens, lawns, or electronic objections and hearing c. A developmental toxicity study in buildings (residential and other indoor requests must be identified by the rabbits for sodium tetrathiocarbonate uses). docket number [OPP–300487]. No with a maternal NOEL of 75 mg/kg and 1. From food and feed uses. The Confidential Business Information (CBI) a LEL of 150 mg/kg (convulsions, nature of residues is understood. Entek should be submitted through e-mail. prostration) and a developmental NOEL Corporation has documented that the Copies of electronic objections and of 150 mg/kg and a LEL of 185 mg/kg level of free or bound carbon disulfide hearing requests on this rule may be (increased resorption, post implantation is extremely low in the treated crops filed online at many Federal Depository loss, increase incidence 13th rib). (less than 50 parts per billion (ppb)). Libraries. Additional information on d. Sodium tetrathiocarbonate was Carbon disulfide is a naturally occurring electronic submissions can be found negative in a bacterial gene mutation compound found in grapes and citrus at below in this document. study with and without S9 activation, 5 to 20 ppb and up to 1 to 73 ppm in FOR FURTHER INFORMATION CONTACT: By unscheduled mammalian DNA Shiitake mushrooms. The Analytical mail: Cynthia Giles-Parker, Product synthesis, and in vitro chromosomal Method has been validated. A tolerance Manager (PM) 22, Registration Division, aberration without S9 activation, but for carbon disulfide is established at the Environmental Protection Agency, 401 weakly positive with S9 activation. analytical level of quantification of 0.1 M St., SW., Washington, DC 20460. 2. The toxicology data for carbon ppm. Dietary exposure to carbon Office location, telephone number and disulfide include: disulfide from treatment of the almonds, e-mail address: Rm. 229, CM #2, 1921 a. In a 90–day rat inhalation study peaches and plums with sodium Jefferson Davis Highway, Arlington, VA with carbon disulfide the NOEL for tetrathiocarbonate will not be (703–305–7740), e-mail: giles- neuropathology was 50 ppm, the LOEL appreciably different from the natural [email protected]. was 300 ppm based on axonal swelling background levels of carbon disulfide in 26948 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations these crops. Therefore, further toxicity EPA will be able to develop and apply systems of mammals has not been testing for carbon disulfide was not scientific principles for better determined; however, no evidence of required and the standard risk determining which chemicals have a such effects were reported in the assessment approach of using the common mechanism of toxicity and toxicology studies described above. Reference Dose (RfD) based on systemic evaluating the cumulative effects of There was no observed pathology of the toxicity are not relevant to this petition. such chemicals. The Agency anticipates, endocrine organs in these studies. There 2. From potable water. Two however, that even as its understanding is no evidence at this time that carbon prospective ground water monitoring of the science of common mechanisms disulfide causes endocrine effects. studies were conducted for sodium increases, decisions on specific classes 2. Metabolism in plants and animals. tetrathiocarbonate. In both studies, of chemicals will be heavily dependent The metabolism of carbon disulfide and sodium tetrathiocarbonate was applied on chemical specific data, much of sodium tetrathiocarbonate in plants is above very shallow aquifers (3 to 7 ft. which may not be presently available. adequately understood. There is no below the surface) and the ground water EPA does not have, at this time, reasonable expectation of secondary was analyzed for carbon disulfide. available data to determine whether residues occurring in milk, eggs, and Transient groundwater contamination carbon disulfide has a common meat of livestock or poultry. with carbon disulfide was detected. mechanism of toxicity with other 3. Analytical method. An adequate Carbon disulfide, however, which is substances or how to include this analytical method, gas chromatography, very volatile rapidly moves upward pesticide in a cumulative risk is available for enforcement purposes. through the soil profile and diffuses to assessment. There is the possibility that Because of the long lead time from the atmosphere. With the proposed and other pesticides such as metam sodium establishing these tolerances to registered uses of sodium or the EDBC’s (such as zineb or maneb) publication of the enforcement tetrathiocarbonate only in the Western may degrade to carbon disulfide. methodology in the Pesticide Analytical United States with its deeper aquifers However, we do not have information to Manual, Vol. II, the analytical and a label restriction prohibiting indicate that use of the other pesticides methodology is being made available in application within 100 feet of a potable would raise the level of carbon disulfide the interim to anyone interested in water well, carbon disulfide is not likely in treated crops above the background pesticide enforcement when requested to be a residual ground water level. For the purposes of this tolerance from: Calvin Furlow, Public Information contaminant. action, therefore, EPA has not assumed Branch, Field Operations Division 3. From non-dietary uses. There are that carbon disulfide has a common (7506C), Office of Pesticide Programs, no non-food uses of sodium mechanism of toxicity with other Environmental Protection Agency, 401 tetrathiocarbonate registered under the substances. The general populations M St., SW., Washington, DC 20460. Federal Insecticide, Fungicide and dietary exposure to carbon disulfide Office location and telephone number: Rodenticide Act, as amended. No non- from treatment of the crops with sodium Room 1130A, CM #2, 1921 Jefferson dietary exposures are expected for the tetrathiocarbonate will not be Davis Hwy., Arlington, VA (703–305– general population. appreciably different from the natural 5937). 4. Cumulative exposure to substances background levels of carbon disulfide 4. International tolerances. There are with common mechanism of toxicity. the untreated crops. no Codex Alimentarius Commission Section 408(b)(2)(D)(v) requires that, III. Determination Of Safety For Infants (Codex) Maximum Residue Levels when considering whether to establish, (MRLs) for carbon disulfide. modify, or revoke a tolerance, the And Children Agency consider ‘‘available FFDCA section 408 provides that EPA V. Summary of Findings information’’ concerning the cumulative shall apply an additional safety factor The analysis for carbon disulfide effects of a particular pesticide’s for infants and children in the case of shows the proposed uses on almonds, residues and ‘‘other substances that threshold effects to account for pre- and peaches and plums will not cause have a common mechanism of toxicity.’’ post-natal toxicity and the completeness exposure at which the Agency believes The Agency believes that ‘‘available of the data base, unless EPA determines there is an appreciable risk. information’’ in this context might that such an additional factor is not Based on the information cited above, include not only toxicity, chemistry, necessary to protect the safety of infants the Agency has determined that the and exposure data, but also scientific and children. The level of free or bound establishment of the tolerances by policies and methodologies for carbon disulfide or parent sodium amending 40 CFR part 180 will be safe; understanding common mechanisms of tetrathiocarbonate is extremely low in therefore, the tolerances are established toxicity and conducting cumulative risk the treated crops (less than 50 ppb). as set forth below. assessments. For most pesticides, Carbon disulfide is a naturally occurring VI. Objections and Hearing Requests although the Agency has some compound found in grapes and citrus at information in its files that may turn out 5 to 20 ppb and up to 1 to 73 ppm in The new FFDCA section 408(g) to be helpful in eventually determining Shiitake mushrooms. A tolerance for provides essentially the same process whether a pesticide shares a common carbon disulfide is established at the for persons to ‘‘object’’ to a tolerance mechanism of toxicity with any other analytical level of quantification of 0.1 regulation issued by EPA under new substances, EPA does not at this time ppm. Children’s dietary exposure to section 408(e) and (1)(6) as was have the methodologies to resolve the carbon disulfide resulting from provided in the old section 408 and in complex scientific issues concerning treatment of the almonds, peaches and section 409. However, the period for common mechanism of toxicity in a plums with sodium tetrathiocarbonate filing objections is 60 days, rather than meaningful way. EPA has begun a pilot will not be appreciably different from 30 days. EPA currently has procedural process to study this issue further the natural background levels of carbon regulations which governs the through the examination of particular disulfide in the untreated crops. submission of objections and hearing classes of pesticides. The Agency hopes requests. These regulations will require that the results of this pilot process will IV. Other Considerations some modification to reflect the new increase the Agency’s scientific 1. Endocrine effects. An evaluation of law. However, until those modifications understanding of this question such that the potential effects on the endocrine can be made, EPA will continue to use Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26949 those procedural regulations with Virginia address in ‘‘ADDRESSES’’ at and pests, Reporting and recordkeeping appropriate adjustments to reflect the the beginning of this document. requirements new law. Electronic comments can be sent Dated: May 6, 1997 Any person may, by July 15, 1997, file directly to EPA at: written objections to any aspect of this [email protected] Daniel M. Barolo, regulation and may also request a Electronic comments must be Director, Office of Pesticide Programs. hearing on those objections. Objections submitted as an ASCII file avoiding the Therefore, 40 CFR Part 180 is and hearing requests must be filed with use of special characters and any form amended as follows: the Hearing Clerk, at the address given of encryption. Comment and data will above (40 CFR 178.20). A copy of the also be accepted on disks in PART 180Ð [AMENDED] objections and/or hearing requests filed Wordperfect 5.1 file format or ASCII file with the Hearing Clerk should be 1. The authority citation for part 180 format. All comments and data in continues to read as follows: submitted to the OPP docket for this electronic form must be identified by rulemaking. The objections submitted Authority: 21 U.S.C. 346a and 371. the docket number [OPP–300487]. 2. By amending § 180.467 to must specify the provisions of the Electronic comments on this proposed regulation deemed objectionable and the alphabetically add the food rule may be filed online at many Federal commodities: almond hulls; almond grounds for the objections (40 CFR Depository Libraries. 178.25). Each objection must be nutmeat; peaches; and plums (fresh accompanied by the fee prescribed by VIII. Regulatory Assessment prunes) to the table as follows: 40 CFR 180.33(i). If a hearing is Requirements § 180.467 Carbon disulfide; tolerances for requested, the objections must include a Under Executive Order 12866 (58 FR residues. statement of the factual issue(s) on 51735, Oct. 4, 1993), this action is not * * * * * which a hearing is requested, the a ‘‘significant regulatory action’’ and requestor’s contentions on such issues, since this action does not impose any Parts per and a summary of any evidence relied Commodity information collection requirements million upon by the objector (40 CFR 178.27). A subject to approval under the Paperwork request for a hearing will be granted if Reduction Act, 44 U.S.C. 3501 et seq., Almond hulls ...... 0.1 the Administrator determines that the Almond nutmeat ...... 0.1 it is not subject to review by the Office material submitted shows the following: ***** of Management and Budget. In addition, There is a genuine and substantial issue Peaches ...... 0.1 this action does not impose any of fact; there is a reasonable possibility Plums (fresh prunes) ...... 0.1 enforceable duty, or contain any that available evidence identified by the ‘‘unfunded mandates’’ as described in requestor would, if established, resolve [FR Doc. 97–12915 Filed 5–15–97; 8:45 am] Title II of the Unfunded Mandates one or more of such issues in favor of BILLING CODE 6560±50±F the requestor, taking into account Reform Act of 1995 (Pub. L. 104–4), or uncontested claims or facts to the require prior consultation as specified ENVIRONMENTAL PROTECTION contrary; and resolution of the factual by Executive Order 12875 (58 FR 58093, AGENCY issue(s) in the manner sought by the October 28, 1993), or special considerations as required by Executive requestor would be adequate to justify 40 CFR Part 180 the action requested (40 CFR 178.32). Order 12898 (59 FR 7629, February 16, Information submitted in connection 1994). [OPP±300491; FRL±5718±2] Because tolerances established on the with an objection or hearing request RIN 2070±AB78 may be claimed confidential by marking basis of a petition under section 408(d) any part or all of that information as of FFDCA do not require issuance of a Clopyralid; Pesticide Tolerance for CBI. Information so marked will not be proposed rule, the regulatory flexibility Emergency Exemptions disclosed except in accordance with analysis requirements of the Regulatory procedures set forth in 40 CFR part 2. Flexibility Act (RFA), 5 U.S.C. 604(a), AGENCY: Environmental Protection A copy of the information that does not do not apply. Prior to the recent Agency (EPA). contain CBI must be submitted for amendment of the FFDCA, EPA had ACTION: Final rule. inclusion in the public record. treated such rulemakings as subject to Information not marked confidential the RFA; however, the amendments to SUMMARY: This regulation establishes a may be disclosed publicly by EPA the FFDCA clarify that no proposal is time-limited tolerance for residues of without prior notice. required for such rulemakings and the herbicide clopyralid in or on the hence that the RFA is inapplicable. food commodity canola in connection VII. Public Docket Pursuant to 5 U.S.C. 801(a)(1)(A), EPA with EPA’s granting emergency The official record for this submitted a report containing this rule exemptions under section 18 of the rulemaking, as well as the public and other required information to the Federal Insecticide, Fungicide, and version, has been established for this U.S. Senate, the U.S. House of Rodenticide Act authorizing use of the rulemaking under docket number [OPP– Representatives and the Comptroller pesticide on canola in Idaho, Montana, 300487] (including comments and data General of the General Accounting Minnesota, North Dakota and submitted electronically as described Office prior to publication of the rule in Washington. The tolerance will expire below). A public version of this record, today’s Federal Register. This rule is and is revoked on July 31, 1998. including printed, paper versions of not a major rule as defined by 5 U.S.C. DATES: This regulation becomes electronic comments, which does not 804(2). effective May 16, 1997. Objections and include any information claimed as CBI, requests for hearings must be received List of Subjects in 40 CFR Part 180 is available for inspection from 8:30 by EPA on or before July 15, 1997. a.m. to 4 p.m., Monday through Friday, Environmental protection, ADDRESSES: Written objections and excluding legal holidays. The official Administrative practice and procedure, hearing requests, identified by the rulemaking record is located at the Agricultural commodities, Pesticides docket control number, [OPP–300491], 26950 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations must be submitted to: Hearing Clerk tolerance from the Code of Federal issues relating to interpretation and (1900), Environmental Protection Regulations. implementation of the FQPA, EPA does not intend for its actions on such Agency, Rm. M3708, 401 M St., SW., I. Background and Statutory Authority Washington, DC 20460. Fees tolerance to set binding precedents for accompanying objections and hearing The Food Quality Protection Act of the application of section 408 and the requests shall be labeled ‘‘Tolerance 1996 (FQPA) (Pub. L. 104–170) was new safety standard to other tolerances Petition Fees’’ and forwarded to: EPA signed into law August 3, 1996. FQPA and exemptions. Headquarters Accounting Operations amends both the FFDCA, 21 U.S.C. 301 et seq., and the Federal Insecticide, II. Emergency Exemption for Clopyralid Branch, OPP (Tolerance Fees), P.O. Box on Canola and FFDCA Tolerances 360277M, Pittsburgh, PA 15251. A copy Fungicide, and Rodenticide Act of any objections and hearing requests (FIFRA), 7 U.S.C. 136 et seq. Among EPA has authorized under FIFRA filed with the Hearing Clerk identified other things, FQPA amends FFDCA to section 18 the use of clopyralid on by the docket control number, [OPP– bring all EPA pesticide tolerance-setting canola for control of perennial 300491], must be submitted to: Public activities under section 408 with a new sowthistle and/or Canada thistle. Information and Records Integrity safety standard and new procedures. Biological and economic assessments Branch, Information Resources and These activities are described below and indicate that an urgent, non-routine Services Division (7506C), Office of discussed in greater detail in the final situation exists for the canola crop in Pesticide Programs, Environmental rule establishing the time-limited the states of North Dakota, Minnesota, Protection Agency, 401 M St., SW., tolerance associated with the emergency Montana, Idaho and Washington, and Washington, DC 20460. In person, bring exemption for use of propiconazole on that losses near 100% will occur where a copy of objections and hearing sorghum (61 FR 58135, November 13, thistle stands are thick. Perennial requests to Rm. 1132, CM #2, 1921 1996) (FRL–5572–9). sowthistle and Canadian thistle are New Section 408(b)(2)(A)(i) of the Jefferson Davis Hwy., Arlington, VA. particularly severe in cool, moist FFDCA allows EPA to establish a weather. After having reviewed the A copy of objections and hearing tolerance (the legal limit for a pesticide submissions, EPA concurs that requests filed with the Hearing Clerk chemical residue in or on a food) only emergency conditions exist for these may also be submitted electronically by if EPA determines that the tolerance is states. sending electronic mail (e-mail) to: opp- ‘‘safe.’’ Section 408(b)(2)(A)(ii) defines As part of its assessment of these [email protected]. Copies of ‘‘safe’’ to mean that ‘‘there is a emergency exemptions, EPA assessed objections and hearing requests must be reasonable certainty that no harm will the potential risks presented by residues submitted as an ASCII file avoiding the result from aggregate exposure to the of clopyralid in or on canola. In doing use of special characters and any form pesticide chemical residue, including so, EPA considered the new safety of encryption. Copies of objections and all anticipated dietary exposures and all standard in FFDCA section 408(b)(2), hearing requests will also be accepted other exposures for which there is and EPA decided that the necessary on disks in WordPerfect 5.1 file format reliable information.’’ This includes tolerance under FFDCA section 408(l)(6) or ASCII file format. All copies of exposure through drinking water and in would be consistent with the new safety objections and hearing requests in residential settings, but does not include standard and with FIFRA section 18. electronic form must be identified by occupational exposure. Section This tolerance will permit the marketing the docket number [OPP–300491]. No 408(b)(2)(C) requires EPA to give special of canola treated in accordance with the Confidential Business Information (CBI) consideration to exposure of infants and provisions of the section 18 emergency should be submitted through e-mail. children to the pesticide chemical exemption. Consistent with the need to Electronic copies of objections and residue in establishing a tolerance and move quickly on the emergency hearing requests on this rule may be to ‘‘ensure that there is a reasonable exemption in order to address an urgent filed online at many Federal Depository certainty that no harm will result to non-routine situation and to ensure that Libraries. infants and children from aggregate the resulting food is safe and lawful, exposure to the pesticide chemical EPA is issuing this tolerance without FOR FURTHER INFORMATION CONTACT: By residue....’’ notice and opportunity for public mail: Libby Pemberton, Registration Section 18 of FIFRA authorizes EPA comment under section 408(e), as Division (7505W), Office of Pesticide to exempt any Federal or State agency provided in section 408(l)(6). Although Programs, Environmental Protection from any provision of FIFRA, if EPA this tolerance will expire and is revoked Agency, 401 M St., SW., Washington, determines that ‘‘emergency conditions on July 31, 1998, under FFDCA section DC 20460. Office location, telephone exist which require such exemption.’’ 408(l)(5), residues of the pesticide not in number, and e-mail address: Sixth This provision was not amended by excess of the amounts specified in the Floor, Crystal Station #1, 2800 Jefferson FQPA. EPA has established regulations tolerance remaining in or on canola after Davis Highway, Arlington, VA (703) governing such emergency exemptions that date will not be unlawful, provided 308–8326, e- in 40 CFR part 166. Section 408(l)(6) of the pesticide is applied during the term mail:[email protected]. the FFDCA requires EPA to establish a of, and in accordance with all the SUPPLEMENTARY INFORMATION: EPA, on time-limited tolerance or exemption conditions of, section 18 of FIFRA. EPA its own initiative, pursuant to section from the requirement for a tolerance for will take action to revoke this tolerance 408(e) and (l)(6) of the Federal Food, pesticide chemical residues in food that earlier if any experience with, scientific Drug, and Cosmetic Act (FFDCA), 21 will result from the use of a pesticide data on, or other relevant information U.S.C. 346a(e) and (l)(6), is establishing under an emergency exemption granted on this pesticide indicate that the a tolerance for residues of the herbicide by EPA under section 18 of FIFRA. Such residues are not safe. clopyralid, in or on canola at 3 parts per tolerances can be established without EPA has not made any decisions million (ppm). This tolerance will providing notice or period for public about whether clopyralid meets EPA’s expire and be revoked by EPA on July comment. registration requirements for use on 31, 1998. After July 31, 1998, EPA will Because decisions on section 18- canola or whether a permanent publish a document in the Federal related tolerances must proceed before tolerance for this use would be Register to remove the revoked EPA reaches closure on several policy appropriate. This tolerance does not Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26951 serve as a basis for registration of studies, the Agency conducts a weight significant subpopulations including clopyralid by a State for special local of the evidence review of all relevant several regional groups, to pesticide needs under FIFRA section 24(c). Nor toxicological data including short term residues. For this pesticide, the most does this tolerance serve as the basis for and mutagenicity studies and structure highly exposed population subgroup any State other than Idaho, Montana, activity relationship. Once a pesticide (children 1 to 6 years old) was not Minnesota, North Dakota, and has been classified as a potential human regionally based. Washington to use this pesticide on this carcinogen, different types of risk crop under section 18 of FIFRA without assessments (e.g., linear low dose IV. Aggregate Risk Assessment and following all provisions of section 18 as extrapolations or margin of exposure Determination of Safety identified in 40 CFR part 166. For calculation based on the appropriate Consistent with section 408(b)(2)(D), additional information regarding the NOEL) will be carried out based on the EPA has reviewed the available emergency exemption for clopyralid, nature of the carcinogenic response and scientific data and other relevant contact the Agency’s Registration the Agency’s knowledge of its mode of information in support of this action. Division at the address provided above. action. EPA has sufficient data to assess the In examining aggregate exposure, hazards of clopyralid and to make a III. Risk Assessment and Statutory FFDCA section 408 requires that EPA determination on aggregate exposure, Findings take into account available and reliable consistent with section 408(b)(2), for the EPA performs a number of analyses to information concerning exposure from time-limited tolerances for residues of determine the risks from aggregate the pesticide residue in the food in clopyralid in or on canola at 3 ppm. exposure to pesticide residues. First, question, residues in other foods for EPA’s assessment of the dietary EPA determines the toxicity of which there are tolerances, residues in exposures and risks associated with pesticides based primarily on groundwater or surface water that is establishing this tolerance follows. toxicological studies using laboratory consumed as drinking water, and other animals. These studies address many non-occupational exposures through A. Toxicological Profile adverse health effects, including (but pesticide use in gardens, lawns, or EPA has evaluated the available not limited to) reproductive effects, buildings (residential and other indoor toxicity data and considered its validity, developmental toxicity, toxicity to the uses). Dietary exposure to residues of a completeness, and reliability as well as nervous system, and carcinogenicity. pesticide in a food commodity are the relationship of the results of the For many of these studies, a dose estimated by multiplying the average studies to human risk. EPA has also response relationship can be daily consumption of the food forms of considered available information determined, which provides a dose that that commodity by the tolerance level or concerning the variability of the causes adverse effects (threshold effects) the anticipated pesticide residue level. sensitivities of major identifiable and doses causing no observed effects The Theoretical Maximum Residue subgroups of consumers, including (the ‘‘no-observed effect level’’ or Contribution (TMRC) is an estimate of infants and children. The nature of the ‘‘NOEL’’). the level of residues consumed daily if toxic effects caused by clopyralid are Once a study has been evaluated and each food item contained pesticide discussed below. the observed effects have been residues equal to the tolerance. The 1. Acute toxicity. No toxicology determined to be threshold effects, EPA TMRC is a ‘‘worst case’’ estimate since studies were identified by the Office of generally divides the NOEL from the it is based on the assumptions that food Pesticide Programs (OPP) which study with the lowest NOEL by an contains pesticide residues at the demonstrated the need for an acute uncertainty factor (usually 100 or more) tolerance level and that 100% of the dietary risk assessment. to determine the Reference Dose (RfD). crop is treated by pesticides that have 2. Short-term non-dietary inhalation The RfD is a level at or below which established tolerances. If the TMRC and dermal toxicity. Based on available daily aggregate exposure over a lifetime exceeds the RfD or poses a lifetime data indicating that there was no will not pose appreciable risks to cancer risk that is greater than evidence of toxicity by the dermal or human health. An uncertainty factor approximately one in a million, EPA inhalation routes, non-dietary exposure (sometimes called a ‘‘safety factor’’) of attempts to derive a more accurate risks were not calculated. 100 is commonly used since it is exposure estimate for the pesticide by 3. Chronic toxicity. Based on the assumed that people may be up to 10 evaluating additional types of available chronic toxicity data, OPP has times more sensitive to pesticides than information (anticipated residue data established the RfD for clopyralid at 0.5 the test animals, and that one person or and/or percent of crop treated data) milligrams(mg)/ kilogram(kg)/day. The subgroup of the population (such as which show, generally, that pesticide RfD was established based on an NOEL infants and children) could be up to 10 residues in most foods when they are of 50 mg/kg/day from a 2–year rat times more sensitive to a pesticide than eaten are well below established feeding study. Effects observed at the another. In addition, EPA assesses the tolerances. lowest effect level (LEL) were decreased potential risks to infants and children Percent of crop treated estimates are mean body weights in females. An based on the weight of the evidence of derived from Federal and private market uncertainty factor of 100 was used. the toxicology studies and determines survey data. Typically, a range of 4. Carcinogenicity. No evidence of whether an additional uncertainty factor estimates are supplied and the upper carcinogenicity was seen in mice or in is warranted. Thus, an aggregate daily end of this range is assumed for the rats fed clopyralid for 24 months. exposure to a pesticide residue at or exposure assessment. By using this below the RfD (expressed as 100% or upper end estimate of percent of crop B. Exposures and Risks less of the RfD) is generally considered treated, the Agency is reasonably certain In examining aggregate exposure, acceptable by EPA. that exposure is not understated for any FQPA directs EPA to consider available Lifetime feeding studies in two significant subpopulation group. information concerning exposures from species of laboratory animals are Further, regional consumption the pesticide residue in food and other conducted to screen pesticides for information is taken into account non-occupational exposures. The cancer effects. When evidence of through EPA’s computer-based model primary non-food sources of exposure increased cancer is noted in these for evaluating the exposure of the Agency looks at include drinking 26952 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations water (whether from groundwater or using various data sources. The Agency common mechanism of toxicity in a surface water), and exposure through then applied the estimated residue meaningful way. EPA has begun a pilot pesticide use in gardens, lawns, or levels, in conjunction with appropriate process to study this issue further buildings (residential and other indoor toxicological endpoints (RfD’s or acute through the examination of particular uses). In evaluating food exposures, EPA dietary NOEL’s) and assumptions about classes of pesticides. The Agency hopes takes into account varying consumption body weight and consumption, to that the results of this pilot process will patterns of major identifiable subgroups calculate, for each pesticide, the increase the Agency’s scientific of consumers, including infants and increment of aggregate risk contributed understanding of this question such that children. by consumption of contaminated water. EPA will be able to develop and apply 1. From food and feed uses. While EPA has not yet pinpointed the scientific principles for better Tolerances have been established (40 appropriate bounding figure for determining which chemicals have a CFR 180.431) for residues of clopyralid consumption of contaminated water, the common mechanism of toxicity and (3,6-dichloro-2-pyridinecarboxylic acid) ranges the Agency is continuing to evaluating the cumulative effects of in or on a variety of food commodities, examine are all below the level that such chemicals. The Agency anticipates, including meat, fat, and meat would cause clopyralid to exceed the however, that even as its understanding byproducts of cattle, goats, hogs, horses, RfD if the tolerance being considered in of the science of common mechanisms poultry, and sheep; and milk. Risk this document was granted. The Agency increases, decisions on specific classes assessments were conducted by EPA to has therefore concluded that the of chemicals will be heavily dependent assess dietary exposures and risks from potential exposures associated with on chemical specific data, much of clopyralid as follows: clopyralid in water, even at the higher which may not be presently available. i. Acute exposure and risk. Acute levels the Agency is considering as a Although at present the Agency does dietary risk assessments are performed conservative upper bound, would not not know how to apply the information for a food-use pesticide if a toxicological prevent the Agency from determining in its files concerning common study has indicated the possibility of an that there is a reasonable certainty of no mechanism issues to most risk effect of concern occurring as a result of harm if the tolerance is granted. assessments, there are pesticides as to a one day or single exposure. The 3. From non-dietary exposure. which the common mechanism issues Agency has determined that this risk Clopyralid is registered by EPA for can be resolved. These pesticides assessment was not required. outdoor Christmas tree plantations, include pesticides that are ii. Chronic exposure and risk. For the grasses grown for seed, fallow cropland, toxicologically dissimilar to existing purpose of assessing chronic dietary non-cropland and other non-food uses. chemical substances (in which case the exposure from clopyralid, EPA assumed i. Acute exposure and risk. The Agency can conclude that it is unlikely tolerance level residues and 100% of Agency has determined that this risk that a pesticide shares a common crop treated for the proposed and assessment was not required. mechanism of activity with other existing food uses of clopyralid. These ii. Chronic exposure and risk. The substances) and pesticides that produce conservative assumptions result in Agency has determined that a chronic a common toxic metabolite (in which overestimation of human dietary non-dietary exposure does not exist for case common mechanism of activity exposures. clopyralid. will be assumed). 2. From drinking water. Studies iii. Short- and intermediate term EPA does not have, at this time, indicate clopyralid is persistent in the exposure and risk. The Agency has available data to determine whether field, very soluble in water, does not determined there are no short- and clopyralid has a common mechanism of hydrolyze, and is very mobile in soil. intermediate endpoints of concern. toxicity with other substances or how to Therefore, clopyralid has the potential Therefore, this risk assessment is not include this pesticide in a cumulative to leach to ground water and/or required for clopyralid. risk assessment. Unlike other pesticides contaminate surface water through 4. Cumulative exposure to substances for which EPA has followed a dissolved residues in runoff. There is no with common mechanism of toxicity. cumulative risk approach based on a entry for clopyralid in the ‘‘Pesticides in Section 408(b)(2)(D)(v) requires that, common mechanism of toxicity, Groundwater Data Base’’ (EPA 734–12– when considering whether to establish, clopyralid does not appear to produce a 92–001, September 1992). There is no modify, or revoke a tolerance, the toxic metabolite produced by other established Maximum Concentration Agency consider ‘‘available substances. For the purposes of this Level (MCL) for residues of clopyralid information’’ concerning the cumulative tolerance action, therefore, EPA has not in drinking water. No drinking water effects of a particular pesticide’s assumed that clopyralid has a common health advisory levels have been residues and ‘‘other substances that mechanism of toxicity with other established for clopyralid. have a common mechanism of toxicity.’’ subtances. i. Acute exposure and risk. The The Agency believes that ‘‘available Agency has determined that this risk information’’ in this context might C. Aggregate Risks and Determination of assessment was not required. include not only toxicity, chemistry, Safety For U.S. Population ii. Chronic exposure and risk. Because and exposure data, but also scientific 1. Acute risk. There are no acute the Agency lacks sufficient water- policies and methodologies for dietary endpoints of concern; therefore related exposure data to complete a understanding common mechanisms of an acute aggregate risk assessment is not comprehensive drinking water risk toxicity and conducting cumulative risk required for clopyralid. assessment for many pesticides, EPA assessments. For most pesticides, 2. Chronic risk. Using the has commenced and nearly completed a although the Agency has some conservative TMRC exposure process to identify a reasonable yet information in its files that may turn out assumptions described above, EPA has conservative bounding figure for the to be helpful in eventually determining concluded that aggregate exposure to potential contribution of water related whether a pesticide shares a common clopyralid from food will utilize 12% of exposure to the aggregate risk posed by mechanism of toxicity with any other the RfD for the U.S. population. The a pesticide. In developing the bounding substances, EPA does not at this time major identifiable subgroup with the figure, EPA estimated residue levels in have the methodologies to resolve the highest aggregate exposure is children (1 water for a number of specific pesticides complex scientific issues concerning to 6 years old), discussed below. EPA Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26953 generally has no concern for exposures or children or the potency or unusual tolerances for clopyralid are available. A below 100% of the RfD because the RfD toxic properties of a compound do not method for determining clopyralid represents the level at or below which raise concerns regarding the adequacy of residues is described in PAM, Vol. II. daily aggregate exposure over a lifetime the standard margin of exposure/safety C. Magnitude of residues will not pose appreciable risks to factor. human health. Despite the potential for 1. Developmental toxicity studies. The Residues of clopyralid are not exposure to clopyralid in drinking developmental toxicity NOELs of > 250 expected to exceed 3 ppm in canola as water, EPA does not expect the mg/kg/day (HDT) in both rats and a result of this use. Clopyralid does not aggregate exposure to exceed 100% of rabbits demonstrate that there is no concentrate in canola processed by- the RfD. EPA concludes that there is a developmental (pre-natal) toxicity products (refined oil and meal). Existing reasonable certainty that no harm will present for clopyralid. EPA further notes meat/milk/poultry and egg tolerances result from aggregate exposure to that the developmental NOELs are should be adequate to cover secondary clopyralid residues. fivefold higher in both rats and rabbits, residues which result from feeding 3. Short- and intermediate-term risk. respectively, than the NOEL of 50 mg/ canola meal from treated canola. EPA has determined there are no short- kg/day from the 2–year feeding study in D. International Residue Limits and intermediate-endpoints of concern; rats, which is the basis for the RfD. therefore, this aggregate risk assessment 2. Reproductive toxicity study. In the There are no Canadian, Mexican, or is not required for clopyralid. two-generation reproductive toxicity Codex maximum residue levels study in rats, the pup toxicity NOEL of established for residues of clopyralid on D. Aggregate Cancer Risk for U.S. canola. Population 1,500 mg/kg/day (HDT) was greater than the parental (systemic) toxicity NOEL of VI. Conclusion EPA has determined that there is no 500 mg/kg/day. Therefore, a tolerance in connection evidence of carcinogenicity in rats or 3. Pre- and post-natal sensitivity. The with the FIFRA section 18 emergency mice for clopyralid; therefore, an above findings suggest that post-natal exemptions is established for residues of aggregate cancer risk assessment is not development in pups is not more clopyralid in canola at 3 ppm. required for clopyralid. sensitive and that infants and children E. Aggregate Risks and Determination of may not be more sensitive to clopyralid VII. Objections and Hearing Requests Safety for Infants and Children than adult animals. The pup NOEL is The new FFDCA section 408(g) In assessing the potential for thirtyfold higher than the RfD NOEL of provides essentially the same process additional sensitivity of infants and 50 mg/kg/day. for persons to ‘‘object’’ to a tolerance children to residues of clopyralid, EPA 4. Acute risk. The Agency has regulation issued by EPA under new considered data from developmental determined that this risk assessment section 408(e) and (l)(6) as was provided toxicity studies in the rat and rabbit and was not required. in the old section 408 and in section a two-generation reproduction study in 5. Chronic risk. EPA has concluded 409. However, the period for filing the rat. The developmental toxicity that the percent of the RfD that will be objections is 60 days, rather than 30 studies are designed to evaluate adverse utilized by chronic dietary exposure to days. EPA currently has procedural effects on the developing organism residues of clopyralid ranges from 11% regulations which govern the resulting from pesticide exposure for nursing infants (<1 year old) up to submission of objections and hearing during prenatal development to one or 14% for children 1 to 6 years old. requests. These regulations will require both parents. Reproduction studies However, this calculation assumes some modification to reflect the new provide information relating to effects tolerance level residues for all law. However, until those modifications from exposure to the pesticide on the commodities and is therefore an over- can be made, EPA will continue to use reproductive capability of mating estimate of dietary risk. Refinement of those procedural regulations with animals and data on systemic toxicity. the dietary risk assessment by using appropriate adjustments to reflect the FFDCA section 408 provides that EPA anticipated residue data would reduce new law. shall apply an additional tenfold margin dietary exposure. The addition of Any person may, by July 15, 1997, file of safety for infants and children in the potential exposure from clopyralid written objections to any aspect of this case of threshold effects to account for residues in drinking water is not regulation (including the revocation pre-and post-natal toxicity and the expected to result in an exposure which provision) and may also request a completeness of the database unless would exceed the RfD. hearing on those objections. Objections EPA determines that a different margin 6. Short- or intermediate-term risk. and hearing requests must be filed with of safety will be safe for infants and The Agency has determined there are no the Hearing Clerk, at the address given children. Margins of safety are short- and intermediate endpoints of above (40 CFR 178.20). A copy of the incorporated into EPA risk assessments concern. Therefore, this risk assessment objections and/or hearing requests filed either directly through use of a margin is not required for clopyralid. with the Hearing Clerk should be of exposure analysis or through using V. Other Considerations submitted to the OPP docket for this uncertainty (safety) factors in rulemaking. The objections submitted calculating a dose level that poses no A. Metabolism in Plants and Animals must specify the provisions of the appreciable risk to humans. EPA The metabolism of clopyralid in regulation deemed objectionable and the believes that reliable data support using plants and animals is adequately grounds for the objections (40 CFR the standard margin of exposure and understood for the purposes of this 178.25). Each objection must be uncertainty factor (usually 100 for tolerance. The residue of concern is accompanied by the fee prescribed by combined inter- and intra-species clopyralid (3,6-dichloro-2- 40 CFR 180.33(i). If a hearing is variability) and not the additional pyridinecarboxylic acid). requested, the objections must include a tenfold margin of exposure/uncertainty statement of the factual issues on which factor when EPA has a complete data B. Analytical Enforcement Methodology a hearing is requested, the requestor’s base under existing guidelines and Adequate methods for purposes of contentions on such issues, and a when the severity of the effect in infants data collection and enforcement of summary of any evidence relied upon 26954 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations by the requestor (40 CFR 178.27). A address in ‘‘ADDRESSES’’ at the PART 180Ð[AMENDED] request for a hearing will be granted if beginning of this document. the Administrator determines that the 1. The authority citation for part 180 material submitted shows the following: IX. Regulatory Assessment continues to read as follows: There is genuine and substantial issue Requirements Authority: 21 U.S.C. 346a and 371. 2. Section 180.431, paragraph (b) is of fact; there is a reasonable possibility Under Executive Order 12866 (58 FR amended by revising the introductory that available evidence identified by the 51735, October 4, 1993), this action is requestor would, if established, resolve text, the column headings to the table, not a ‘‘significant regulatory action’’ in the third column of the table by one or more of such issues in favor of and, since this action does not impose the requestor, taking into account changing ‘‘July 31, 1998’’ to read ‘‘7/31/ any information collection requirements 98’’ and by adding an entry for canola uncontested claims or facts to the as defined by the Paperwork Reduction contrary; and resolution of the factual to the table. Act, 44 U.S.C. 3501 et seq., it is not issues in the manner sought by the subject to review by the Office of § 180.431 Clopyralid; tolerances for requestor would be adequate to justify Management and Budget. In addition, residues. the action requested (40 CFR 178.32). this action does not impose any * * * * * Information submitted in connection enforceable duty or contain any (b) Section 18 emergency exemptions. with an objection or hearing request Time-limited tolerances are established may be claimed confidential by marking unfunded mandate as described in the for residues of the herbicide clopyralid any part or all of that information as Unfunded Mandates Reform Act of 1995 in connection with use of the pesticide CBI. Information so marked will not be (Pub. L. 104–4), or require prior under section 18 emergency exemptions disclosed except in accordance with consultation with State officials as granted by EPA. The tolerances will procedures set forth in 40 CFR part 2. specified by Executive Order 12875 (58 expire and are revoked on the dates A copy of the information that does not FR 58093, October 28, 1993), or special specified in the following table. contain CBI must be submitted for considerations as required by Executive Order 12898 (59 FR 7629, February 16, inclusion in the public record. Expiration/ Information not marked confidential 1994). Parts per Commodity million Revocation may be disclosed publicly by EPA Because FFDCA section 408(l)(6) Date without prior notice. permits establishment of this regulation without a notice of proposed Canola ...... 3 7/31/98 VIII. Public Docket rulemaking, the regulatory flexibility ***** EPA has established a record for this analysis requirements of the Regulatory * * * * * rulemaking under docket number [OPP– Flexibility Act, 5 U.S.C. 604(a), do not 300491] (including any comments and apply. Nonetheless, the Agency has [FR Doc. 97–12913 Filed 5–15–97; 8:45 am] data submitted electronically). A public previously assessed whether BILLING CODE 6560±50±F version of this record, including establishing tolerances or exemptions printed, paper versions of electronic from tolerance, raising tolerance levels, ENVIRONMENTAL PROTECTION comments, which does not include any or expanding exemptions adversely AGENCY information claimed as CBI, is available impact small entities and concluded, as for inspection from 8:30 a.m. to 4 p.m., a generic matter, that there is no adverse 40 CFR Part 180 Monday through Friday, excluding legal impact. (46 FR 24950, May 4, 1981). holidays. The public record is located in [OPP±300492; FRL±5718±4] Under 5 U.S.C. 801(a)(1)(A) of the Room 1132 of the Public Information Small Business Regulatory Enforcement RIN 2070±AB78 and Records Integrity Branch, Fairness Act of 1996 (Title II of Pub. L. Information Resources and Services 104–121, 110 Stat. 847), EPA submitted Pyridaben; Pesticide Tolerance Division (7506C), Office of Pesticide a report containing this rule and other Programs, Environmental Protection AGENCY: Environmental Protection required information to the U.S. Senate, Agency, Crystal Mall #2, 1921 Jefferson Agency (EPA). Davis Highway, Arlington, VA. the U.S. House of Representatives and the Comptroller General of the General ACTION: Final rule. Electronic comments may be sent Accounting Office prior to publication directly to EPA at: SUMMARY: This regulation establishes [email protected]. of the rule in today’s Federal Register. time-limited tolerances with an This rule is not a ‘‘major rule’’ as expiration date of May 31, 2001 for Electronic comments must be defined by 5 U.S.C. 804(2). submitted as an ASCII file avoiding the residues of the pesticide pyridaben [2- use of special characters and any form List of Subjects in 40 CFR Part 180 tert-butyl-5-(4-tert-butylbenzylthio)-4- of encryption. chloropyridazin-3(2H)-one] in or on the The official record for this Environmental protection, food commodities apples, wet apple rulemaking, as well as the public Administrative practice and procedure, pomace, pears, citrus, citrus oil, version, as described above will be kept Agricultural commodities, Pesticides almonds, almond hulls, meat, milk and in paper form. Accordingly, EPA will and pests, Reporting and recordkeeping fat. A petition was submitted by BASF transfer any copies of objections and requirements. Corporation to EPA under the Federal hearing requests received electronically Dated: May 8, 1997. Food, Drug, and Cosmetic Act (FFDCA) into printed, paper form as they are as amended by the Food Quality received and will place the paper copies James Jones, Protection Act of 1996 (Pub. L. 104–170) in the official rulemaking record which requesting the tolerance. These will also include all comments Acting Director, Registration Division, Office tolerances will expire and are revoked submitted directly in writing. The of Pesticide Programs. on May 31, 2001. official rulemaking record is the paper Therefore, 40 CFR Chapter I is DATES: This regulation becomes record maintained at the Virginia amended as follows: effective May 16, 1997. Objections and Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26955 requests for hearings must be received petitions 5F4543, 6F4651, 6F4741 and pesticide must not only have by EPA on or before July 15, 1997. 6F4721 requested that the appropriate tolerances under the ADDRESSES: Written objections and Administrator, pursuant to section 408 FFDCA, but also must be registered hearing requests, identified by the of the Federal Food, Drug, and Cosmetic under section 3 of the Federal docket control number, [OPP–300492], Act (FFDCA), 21 U.S.C 346a, amend 40 Insecticide, Fungicide, and Rodenticide must be submitted to: Hearing Clerk CFR part 180 to establish tolerances for Act (FIFRA, 7 U.S.C. 136 et seq.). (1900), Environmental Protection residues of the pesticide pyridaben [2- Section 408 was substantially Agency, Rm. M3708, 401 M St., SW., tert-butyl-5-(4-tert-butylbenzylthio)-4- amended by the FQPA. Among other Washington, DC 20460. Fees chloropyridazin-3(2H)-one; EPA things, the FQPA amends the FFDCA to accompanying objections and hearing Chemical No. 129105; CAS No. 96489– bring all EPA pesticide tolerance-setting requests shall be labeled ‘‘Tolerance 71–3] in or on the food commodities: activities under a new section 408 with Petition Fees’’ and forwarded to: EPA apples, wet apple pomace, pears, citrus, a new safety standard and new Headquarters Accounting Operations dried citrus pulp, citrus oil, almonds, procedures. New section 408(b)(2)(A)(i) Branch, OPP (Tolerance Fees), P.O. Box and almond hulls. The proposed allows EPA to establish a tolerance (the 360277M, Pittsburgh, PA 15251. A copy tolerance levels for pyridaben and its legal limit for a pesticide chemical of any objections and hearing requests metabolites are: residue in or on a food) only if EPA filed with the Hearing Clerk identified determines that the tolerance is ‘‘safe.’’ by the docket control number, [OPP– Parts per Section 408(b)(2)(A)(ii) defines ‘‘safe’’ to Commodity million 300492], should be submitted to: Public mean that ‘‘there is a reasonable certainty that no harm will result from Information and Records Integrity Almond hulls ...... 4.0 Branch, Information Resources and aggregate exposure to the pesticide Almonds ...... 0.05 chemical residue, including all Services Division, (7506C), Office of Apple pomace, wet ...... 1.0 Pesticide Programs, Environmental Apples ...... 0.6 anticipated dietary exposures and all other exposures for which there is Protection Agency, 401 M St., SW., Citrus ...... 0.5 reliable information.’’ This includes Washington, DC 20460. In person, bring Citrus oil ...... 10 exposure through food, drinking water, a copy of objections and hearing Citrus pulp, dried ...... 1.5 Milk ...... 0.01 and from pesticide use in gardens, requests to Rm. 1132, CM#2, 1921 Fat ...... 0.05 lawns, or buildings (residential and Jefferson Davis Highway, Arlington, VA. Meat ...... 0.05 other indoor uses) but does not include A copy of objections and hearing Meat by-products ...... 0.05 occupational exposure. Section requests filed with the Hearing Clerk Pears ...... 0.75 408(b)(2)(C) requires EPA to give special may also be submitted electronically by consideration to exposure of infants and sending electronic mail (e-mail) to: OPP- As required by section 408(d) of the children to the pesticide chemical [email protected]. Copies of FFDCA, as recently amended by the residue in establishing a tolerance and objections and hearing requests must be Food Quality Protection Act, Pub. L. to ‘‘ensure that there is a reasonable submitted as an ASCII file avoiding the 104–170, BASF included in the notice certainty that no harm will result to use of special characters and any form of filing a summary of the petitions and infants and children from aggregate of encryption. Copies of objections and authorization for the summary to be exposure to the pesticide chemical hearing requests will also be accepted published in the Federal Register in a residue....’’ on disks in WordPerfect 5.1 file format notice of receipt of the petition. The or ASCII file format. All copies of summary of the petitions prepared by II. Risk Assessment and Statutory objections and hearing requests in the petitioner contained conclusions Findings — Background electronic form must be identified by and assessments to support its EPA performs a number of analyses to the docket control number [OPP– conclusions that the petition complied determine the risks from aggregate 300492]. No Confidential Business with FQPA elements set forth in section exposure to pesticide residues. First, Information (CBI) should be submitted 408(d)(3) of the FFDCA. EPA determines the toxicity of through e-mail. Electronic copies of There were no comments received in pesticides based primarily on objections and hearing requests on this response to the notice of filing. toxicological studies using laboratory rule may be filed online at many Federal animals. These studies address many I. Statutory Background Depository Libraries. adverse health effects, including (but FOR FURTHER INFORMATION CONTACT: By Section 408 of the Federal Food, Drug, not limited to) reproductive effects, mail: Marion Johnson Jr. Product and Cosmetic Act (FFDCA), 21 U.S.C. developmental toxicity, toxicity to the Manager (PM) 10, Registration Division 301 et seq., as amended by the Food nervous system, and carcinogenicity. (7505C), Office of Pesticide Programs, Quality Protection Act of 1996, (FQPA) For many of these studies, a dose Environmental Protection Agency, 401 Pub. L. 104–170) authorizes the response relationship can be M St., SW., Washington, DC 20460. establishment of tolerances (maximum determined, which provides a dose that Office location, telephone number, and residue levels), exemptions from the causes adverse effects (threshold effects) e-mail address: Rm. 210, CM #2, 1921 requirement of a tolerance, and doses causing no observed effects Jefferson Davis Highway, Arlington, VA modifications in tolerances, and (the ‘‘no-observed effect level’’ or (703) 305–6788, e-mail: revocation of tolerances for residues of ‘‘NOEL’’). [email protected]. pesticide chemicals in or on food Once the studies have been evaluated SUPPLEMENTARY INFORMATION: EPA commodities and processed foods. and the observed effects have been issued a notice, in the March 12, 1997 Without a tolerance or exemption, food determined to be threshold effects, EPA Federal Register (62 FR 11450)(FRL– containing pesticide residues is generally divides the NOEL from the 5592–7), which announced that BASF considered to be unsafe and therefore study with the lowest NOEL by an Corporation had submitted pesticide ‘‘adulterated’’ under section 402(a) of uncertainty factor (usually 100 or more) petitions (PP) 5F4543 (on citrus), and the FFDCA, and hence may not legally to determine the Reference Dose (RfD). 6F4651 (on apples), 6F4741 (on pears), be moved in interstate commerce. For a The RfD is a level at or below which and 6F4721 (on almonds). Pesticide pesticide to be sold and distributed, the daily aggregate exposure over a lifetime 26956 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations will not pose appreciable risks to the anticipated pesticide residue level. (4.94 mg/kg/day) for males; 30 ppm human health. An uncertainty factor The Theoretical Maximum Residue (2.64 mg/kg/day) for females. The (sometimes called a ‘‘safety factor’’) of Contribution (TMRC) is an estimate of lowest observed effect level (LOEL) was 100 is commonly used since it is the level of residues consumed daily if determined to be 155 ppm (11.55 mg/ assumed that people may be up to 10 each food item contained pesticide kg/day) for males based on reduced times more sensitive to pesticides than residues equal to the tolerance. The body weight gain, food consumption, the test animals, and that one person or TMRC is a ‘‘worst case’’ estimate since food efficiency and altered clinical subgroup of the population (such as it is based on the assumptions that food pathology parameters; 65 ppm (5.53 mg/ infants and children) could be up to 10 contains pesticide residues at the kg/day) for females based on reduced times more sensitive to a pesticide than tolerance level and that 100 percent of body weight gain and food efficiency. another. In addition, EPA assesses the the crop is treated by pesticides that 3. In a 13 week feeding study in dogs, potential risks to infants and children have established tolerances. If the Pyridaben was administered in capsules based on the weight of the evidence of TMRC exceeds the RfD or poses a to beagle dogs at dosages of 0, 0.5, 1.0, the toxicology studies and determines lifetime cancer risk that is greater than 4.0 or 16.0 mg/kg/day. The NOEL was whether an additional uncertainty factor approximately one in a million, EPA 1.0 mg/kg/day for males and females is warranted. An aggregate daily attempts to derive a more accurate and the LOEL was 4.0 mg/kg/day for exposure to a pesticide residue at or exposure estimate for the pesticide by males and females based on an below the RfD (expressed as 100 percent evaluating additional types of increased incidence of clinical signs and or less of the RfD) is generally information which show, generally, that decreased body weight gain. considered by EPA to pose a reasonable pesticide residues in most foods when 4. In a 21 day dermal study, rats certainty of no harm. For threshold they are eaten are well below received repeated topical applications of effects other than those assessed under established tolerances. pyridaben to about 10% of the body the RfD, EPA generally calculates a Consistent with sections 408(b)(2)(D), surface area at dosages of 30, 100, 300 margin of exposure (MOE). The MOE is EPA has reviewed the available and 1,000 mg/kg for 21 days produced a measure of how close the exposure scientific data and other relevant body weight decreases in the 300 mg/ comes to the NOEL. The NOEL is information in support of this action. kg/day females and in the 1,000 mg/kg/ selected from a study of appropriate EPA has also assessed the toxicology day males and females. The NOEL was duration and route of exposure. The database for pyridaben in its evaluation 100 mg/kg/day and the LOEL was 300 MOE is the NOEL from the selected of application for registration on citrus, mg/kg/day based on decreased body study divided by exposure. MOEs apples, pears and almonds. EPA has weight gain in females. greater than 100 are generally sufficient data to assess the hazards of 5. In a 12–month chronic feeding considered to show a reasonable pyridaben and to make a determination study in dogs pyridaben was certainty of no harm. on aggregate exposure, consistent with administered in capsules at dosages of Lifetime feeding studies in two section 408(b)(2), for granting time- 0, 1.0, 4.0, 16.0 or 32.0 mg/kg/day. The species of laboratory animals are limited tolerances for residues of NOEL was determined to be < 1.0 mg/ conducted to screen pesticides for pyridaben on apples at 0.6 ppm, wet kg/day and the LOEL was ≤ 1.0 mg/kg/ cancer effects. When evidence of apple pomace at 1.0 ppm, pears at 0.75 day based on increased incidence of increased cancer is noted in these ppm, citrus at 0.5 ppm, dried citrus clinical signs in both sexes and studies, the Agency conducts a weight pulp at 1.5 ppm, citrus oil at 10.0 ppm, decreased body weight gain in females of the evidence review of all relevant milk at 0.01 ppm, meat at 0.05 ppm, at 1.0 mg/kg/day. toxicological data including short term meat by-products at 0.05 ppm, fat at 6. Pyridaben was administered in and mutagenicity studies and structure 0.05 ppm, almonds at 0.05 ppm, almond capsules to beagle dogs at dosages of 0 activity relationship. Once a pesticide hulls at 4.0 ppm. EPA’s assessment of and 0.5 mg/kg/day for 1 year. The NOEL has been classified as a potential human the database, dietary exposures and was determined to be < 0.5 mg/kg/day carcinogen, different types of risk risks associated with establishing these for males and females and the LOEL was assessments (e.g., linear low dose tolerances follows. ≤ 0.5 mg/kg/day for males and females extrapolations or margin of exposure based on an increased incidence of calculation based on the appropriate III. Toxicology Database clinical signs in both treated sexes and NOEL) will be carried out based on the EPA has evaluated the available decreased weight gain in the treated nature of the carcinogenic response and toxicity data and considered its validity, females. the Agency’s knowledge of its mode of completeness, and reliability as well as 7. Pyridaben was administered in the action. the relationship of the results of the diet to CD-1 mice at dosages of 0, 2.5, In examining aggregate exposure, studies to human risk. EPA has also 8.0, 25 or 80 ppm for 78 weeks. There FFDCA section 408 requires that EPA considered available information was no evidence of a carcinogenic effect take into account available and reliable concerning the variability of the of the chemical. The NOEL was information concerning exposure from sensitivities of major identifiable determined to be 25 ppm (2.78 mg/kg/ the pesticide residue in the food in subgroups of consumers, including day) for males and females and a LOEL question, residues in other foods for infants and children. The nature of the of 80 ppm (8.88 and 9.74 mg/kg/day for which there are tolerances, and other toxic effects caused by pyridaben are males and females, respectively). The non-occupational exposures, such as discussed below. MTD was determined to be 80 ppm for where residues leach into groundwater 1. A battery of acute toxicity studies males and females based on decreased or surface water that is consumed as placing technical pyridaben in toxicity body weight gain, decreased food drinking water and exposures resulting category II for acute oral toxicity and efficiency and changes in organ weights from indoor and outdoor residential category III and IV for the remaining and histopathology (males). uses. Dietary exposure to residues of a studies. 8. Pyridaben was administered in the pesticide in a food commodity are 2. Pyridaben was administered in the diet to groups of Wistar rats for 104 estimated by multiplying the average diet to CD rats at dosages of 0, 30, 65, weeks at doses of 0, 4, 10, 28 or 80 ppm daily consumption of the food forms of 155 and 350 ppm for 13 weeks. The to assess carcinogenicity. Additional that commodity by the tolerance level or NOEL was determined to be 65 ppm groups received doses of 0, 4, 10, 28 or Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26957

120 ppm for 104 weeks (with an interim mg/kg/day and the Maternal LOEL was reference dose (RfD) has been estimated sacrifice at 53 weeks) to assess chronic < 1.5 mg/kg/day based on decreases in for pyridaben at 0.005 mg/kg/day based toxicity. There was no treatment-related body weight gain and food consumption on a NOEL of 0.5 mg/kg/day (lowest neoplastic or non-neoplastic pathology at all dose levels. The developmental dose tested) observed in a 1 year dog in either phases of the study. The NOEL NOEL was > 15 mg/kg/day and the study for body weight gain reduction. was determined to be 28 ppm in males Developmental LOEL was > 15 mg/kg/ An uncertainty factor of 100 was (1.13 mg/kg/day) and 28 ppm (1.46 mg/ day. utilized to account for both interspecies kg/day) in females. The LOEL was 12. In a standard two-generation and intraspecies variability. determined to be 120 ppm (5.00 mg/kg/ reproduction study, CD rats were ii. Acute toxicity. To assess acute day) in males and 120 ppm (6.52 mg/kg/ administered pyridaben in the diet at dietary exposure, the Agency used a day) in females based on decreased doses of 0, 10, 28 or 80 ppm. There was toxicity endpoint of 50 mg/kg/day, the body weight gain in males and females no effect on reproductive parameters on NOEL for the acute oral neurotoxicity and decreased ALT levels in males in the dose levels tested. The Parental/ study in rats. the chronic toxicity phase. There was no Systemic NOEL is 28 ppm (2.20 and iii. Carcinogenicity. Based on the evidence of a carcinogenic effect of this 2.41 mg/kg/day for males and females, available carcinogenicity studies in two chemical. respectively). The parental/systemic rodent species, the Agency has 9. Pyridaben was administered to LOEL is 80 ppm (6.31 and 7.82 mg/kg/ classified pyridaben as a Group ‘‘E’’ for female Sprague-Dawley rats from days 6 day for males and females, respectively) carcinogenicity (no evidence of through 15 of gestation at dosages of 0, based on decreased body weights, body carcinogenicity). There was no evidence 2.5, 5.7, 13.0 or 30.0 mg/kg/day. weight gains and food efficiency. The of carcinogenicity in an 18–month Maternal toxicity was evidenced by reproductive NOEL is ≥ 80 ppm in feeding study in mice and a 2–year decreased body weight/body weight males and females. The reproductive feeding study in rats at the dose levels gain and food consumption in the 13 LOEL is > 80 ppm in males and females. tested. and 30 mg/kg/day groups. The Maternal 13. Mutagenicity studies including 2. Toxicity endpoints for non-dietary NOEL is 4.7 mg/kg/day (82% of 5.7 mg/ Ames testing, in vitro cytogenicity exposure—i. short- and intermediate- kg/day); The Maternal LOEL is 13.0 mg/ (chinese hamster lung cell), in vivo term risk. As part of the hazard kg/day based on decreased body weight/ micronucleus assay (mouse) and DNA assessment process, the Agency reviews weight gain and food consumption damage/repair (E. coli) showed no the available toxicological database to during the dosing period. The mutagenic activity associated with determine the endpoints of concern. For Developmental NOEL is 13.0 mg/kg/ pyridaben. pyridaben, the Agency does not have a day; a Developmental LOEL of 30 mg/ 14. In an acute neurotoxicity study, concern for a short-term or kg/day based on decreased fetal body rats were dosed once with 0, 50, 100 intermediate-term assessment since the weight and increased incomplete and 200 mg/kg body weight (active available data do not indicate any ossification in selected bones. ingredient equivalents: 44.3, 79.6, and evidence of significant toxicity by the 10. A study was performed in 190 mg/kg for males and 0, 44.5, 99.7, dermal or inhalation routes. Therefore, Himalayan rabbits in which the test and 190 mg/kg body weight for females). a short-term or intermediate-term compound was administered to groups The animals were observed for mortality assessment was not required. Since of female pregnant rabbits by dermal and clinical signs of toxicity for 14 days there are no residential uses or application at dose levels of 0, 70, 170, post-dosing. No treatment related gross exposure, a residential risk assessment or 450 mg/kg/day from gestational days or microscopic neuropathologic findings is not required. 6 to 19, inclusive. The Maternal toxicity, were present. The NOEL for systemic ii. Chronic non-dietary exposure. As observed at 70 mg/kg/day, was toxicity is 50 mg/kg/day in both sexes. part of the hazard assessment process an manifested by moderate to severe skin The LOEL for systemic toxicity is 100 endpoint of concern was determined for reactions. At ‘‘170 mg/kg/day, there was mg/kg in males and females based on the chronic non-dietary assessment. body weight loss and food consumption the clinical signs of toxicity, and However, during the exposure and moderate to severe skin reactions in decreased food consumption and body assessment process, the exposures 50% of the animals. In addition, the weight gain. Based on the findings of which would result from the use of severity of skin reactions increased in a this study (screening battery), the LOEL pyridaben was determined to be of an time-and dose-dependent manner. The for neurobehavioral effects was intermittent nature. The frequency and maternal systemic NOEL is 70 mg/kg/ established at 200 mg/kg in males (FOB duration of these exposures do not day. Developmental toxicity observed at findings and motor activity); no LOEL exhibit a chronic exposure pattern. The 450 mg/kg/day (HDT) consisted of was established for females (>HDT). exposures do not occur often enough to increase in the incidence of fetuses with 15. In a subchronic neurotoxicity be considered a chronic exposure i.e., a incompletely ossified skull. The study pyridaben was administered to continuous exposure that occurs for at developmental NOEL was 170 mg/kg/ CD rats at dietary levels of 0, 30, 100, least several months. Therefore, a day. and 350 ppm (0, 2.5, 8.5 and 28.8 mg/ chronic occupational assessment was 11. New Zealand white rabbits were kg/day in males and 0, 2.8, 9.3 and 31.1 not required. dosed with 0, 1.5, 5, or 15 mg/kg/day mg/kg/day in females, respectively) for C. Aggregate Exposure pyridaben from day 6 through 19 of 13 weeks. No neuropathological effects gestation. Maternal toxicity was were observed. The LOEL was 1. Food and feed uses. For purposes evidenced by a dose-dependent established at 350 ppm (28.8 mg/kg/day of assessing the potential chronic decrease in body weight gain and food in males and 31.1 mg/kg/day in dietary exposure from the use of consumption at al dose levels. There females). The NOEL was established at pyridaben on citrus, apples, almonds was also increase incidence of abortions 100 ppm (8.5 mg/kg/day in males and and pears, EPA has estimated aggregate and clinical signs (few feces) in the 15 9.3 mg/kg/day in females. exposure based on Anticipated Residue mg/kg/day group. There was no Contribution (ARC). For plant evidence that the chemical had a B. Toxicology Profile commodities, anticipated residue levels developmental effect at any of the tested 1. Toxicity endpoint for dietary were calculated from field trials levels. the maternal NOEL was < 1.5 exposure—i. Chronic effects. A conducted at the maximum proposed 26958 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations use rate and minimum pre-harvest unlikely to leach to groundwater. For circumstances, the Agency will reach a interval (PHI), and the ratio of surface water, the GENEEC model tolerance decision based on the best, organosoluble residues to pyridaben estimates body-weight based on chronic currently available and useable residues. The ARC for processed exposure values for pyridaben to be 9.7 information, without regard to common commodities was based upon the × 10-7 mg/kg/day for the whole U.S. mechanism issues. However, the average residue level for that population and 1.8 × 10-6 mg/kg/day for Agency will also revisit such decisions commodity from field trials conducted non-nursing infants (< 1 year). These when the Agency learns how to apply at the maximum proposed use rate and values represent < 0.1% of the RfD. As common mechanism information to minimum PHI, the ratio of GENEEC is a conservative screening tool pesticide risk assessments. organosoluble residues to pyridaben and the exposure estimates for both In the case of pyridaben, it is residues, and the concentration factor adults and children are well below 1% structurally similar to other members of for the processed commodity. In some of the RfD, the Agency concludes that the pyridazinone class of pesticides (i.e. cases, adjustments for degradation of the potential for chronic dietary pyrazon and norflurazon). However, residues prior to analysis was taken into exposure through drinking water in since EPA has determined that it does account. Anticipated residue levels insignificant. not now have the capability to apply the were utilized for livestock feedstuffs to 3. Non-dietary uses. EPA has not information in its files to a resolution of determine the dietary burden for estimated non-dietary exposure for common mechanism issues in a manner ruminants, as well as for ruminant pyridaben since there are no chronic or that would be useful in a risk edible commodities. The proposed acute residential risks expected from the assessment, this tolerance determination pyridaben tolerances result in an ARC citrus, apple, pear and almond uses. The does not take into account common that is up to 74 percent of the reference only other registered use is limited to mechanism issues. The Agency will dose for the most sensitive commercial greenhouse for non-food reexamine the tolerance for pyridaben, subpopulation. The general population ornamental plants. The potential for if reexamination is appropriate, after the is 11.8 percent of the RfD. non-occupational exposure to the Agency has determined how to apply The endpoint for acute dietary risk general population is, thus, not common mechanism issues to its assessment is the NOEL (50 mg/kg/day) expected to be significant. pesticide risk assessments. from an acute oral neurotoxicity study 4. Cumulative exposure to substances IV. Determination of Safety for Infants in rats. The effects at the LOEL of 100 with common mechanism of toxicity. and Children mg/kg/day were clinical signs of Section 408(b)(2)(D)(V) requires that, toxicity, and a decrease in food when considering whether to establish, FFDCA section 408 provides that EPA consumption and body weight gain. The modify, or revoke a tolerance, the shall apply an additional tenfold margin DRES detailed acute analysis estimates Agency consider ‘‘available of safety for infants and children in the the distribution of a singe -day exposure information’’ concerning the cumulative case of threshold effects to account for for the overall U.S. population and effects of a particular pesticide’s pre-and post-natal toxicity and the certain subgroups. For acute dietary risk residues and ‘‘other substances that completeness of the database unless for the population subgroup with the have a common mechanism of toxicity.’’ EPA determines that a different margin highest exposure, non-nursing infants While the Agency has some information of safety will be safe for infants and (<1 year), the estimated margin of in its files that may turn out to be children. Margins of safety are exposure (MOE) is 1,250. The margin of helpful in eventually determining incorporated into EPA risk assessments exposure (MOE) is a measure of how whether a pesticide shares a common either directly through use of a margin close the high end exposure comes to mechanism of toxicity in a meaningful of exposure analysis or through using the LOEL and is calculated as the ratio way, EPA is commencing a pilot process uncertainty (safety) factors in of the NOEL to the exposure (NOEL/ to study this issue further through the calculating a dose level that poses no exposure = MOE). Generally, acute examination of particular classes of appreciable risk to humans. In either dietary margins of exposure greater than pesticides. The Agency hopes the case, EPA generally defines the level of 100 tend to cause no dietary concern. results of this pilot process will enable appreciable risk as exposure that is The Agency considers the acute and it to apply common mechanism issues greater than 1/100 of the no observed chronic dietary risks to be acceptable. to its pesticide risk assessments. At effect level in the animal study In conducting this exposure present, however, the Agency does not appropriate to the particular risk assessment, EPA has made conservative know how to apply the information in assessment. This hundredfold assumptions— 100 percent of the its files concerning common mechanism uncertainty (safety) factor/margin of apples, citrus, almonds and pears will issues to risk assessments, and therefore exposure (safety) is designed to account contain pyridaben residues. This will believes that in most cases, there is no for combined inter-and intra-species result in an overestimate of human available information concerning variability. EPA believes that reliable exposure. mechanism that can be scientifically data support using the standard 2. Potable water. The Agency does not applied to tolerance decisions. Where it hundredfold margin/factor not the have drinking water monitoring data is clear that a particular pesticide may additional tenfold margin/factor when available to perform a quantitative share a significant common mechanism EPA has a complete data base under drinking water risk assessment for with other chemicals, a tolerance existing guidelines and when the pyridaben at this time. Based on the decision may be affected by common severity of the effect in infants or available environmental fate data, mechanism issues. The Agency expects children or the potency or unusual toxic conservative estimates produced by the that most tolerance decisions will fall properties of a compound do not raise Generic Expected Environmental into the area in between, where EPA can concerns regarding the adequacy of the Concentration (GENEEC) model and not reasonably determine whether a standard margin/factor. Leaching Index, environmental pesticide does or does not share a In assessing the potential for risk to concentrations of pyridaben in surface common mechanism of toxicity with infants and children to residues of water and the leaching potential of other chemicals (and, if so, how that pyridaben, EPA considered data from pyridaben have been derived. Pyridaben common mechanism should be factored oral developmental toxicity studies in has been assessed as immobile and thus into a risk assessment). In such the rat and rabbit, as well as data from Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26959 a 2-generation reproduction study in the VI. Other Considerations VIII. Objections and Hearing Requests rat. The developmental toxicity studies A. Endocrine Effects are designed to evaluate adverse effects The new FFDCA section 408(g) provides essentially the same process on the developing organism resulting No evidence of such effects were from pesticide exposure during prenatal for persons to ‘‘Object’’ to a tolerance reported in the toxicology studies regulation issued by EPA under the new development to the mothers. described above. There is no evidence at section 408(d) as was provided in the Reproduction studies provide this time that pyridaben causes old section 408 and in section 409. information relating to effects from endocrine effects. However, the period for filing objections exposure to the pesticide on the B. Metabolism in Plants and Animals is 60 days, rather than 30 days. EPA reproductive capability of mating currently has procedural regulations animals and data on systemic toxicity. The metabolism of pyridaben in which govern the submission of Based on current data requirements, plants and animals is adequately objections and hearing requests. These the database relative to pre-and post understood for the purpose of this regulations will require some natal toxicity is complete. These data tolerance. There are no Codex maximum modification to reflect the new law. taken together suggest minimal concern residue levels established for residues of However, until those modifications can for developmental or reproductive pyridaben on the proposed be made, EPA will continue to use its toxicity and do not indicate any commodities. There is a practical current procedural regulations with increased pre- or post-natal sensitivity. analytical method available for appropriate adjustments to reflect the Therefore, EPA concludes that reliable determination of residues of pyridaben. new law. data support use of a hundredfold safety Adequate enforcement methodology Any person may, by July 15, 1997, file factor and an additional tenfold safety (gas chromatography/electron capture written objections to any aspect of this factor is not needed to protect the safety detector) for plant and animal regulation and may also request a of infants and children. Therefore, no commodities is available to enforce the hearing on those objections. Objections outstanding data requirements exist. tolerances. As a condition of and hearing requests must be filed with registration, EPA has requested that the Hearing Clerk, at the address given V. Determination of Safety for U.S. revisions and clarifications be made to above (40 CFR 178.20). A copy of the Population Including Infants and the submitted methodology, and that the objections and/or hearing requests filed Children animal commodity method be with the Hearing Clerk should be 1. Chronic dietary exposure/risk. A improved. Once this method has been submitted to the OPP docket for this chronic dietary exposure/risk submitted, EPA will provide rulemaking. The objections submitted must specify the provisions of the assessment was performed for information on this method to FDA. In regulation deemed objectionable and the pyridaben using a RfD of 0.005 mg/kg/ the interim, the analytical method is grounds for the objections (40 CFR day. Using the exposure assumptions available to anyone who is interested in pesticide residue enforcement from: By 178.25). Each objection must be previously described, and based on the mail, Calvin Furlow, Public Information accompanied by the fee prescribed by completeness and reliability of the and Records Integrity Branch, 40 CFR 180.33(i). If a hearing is toxicity data base, EPA has concluded Information Resources and Services requested, the objections must include a that aggregate exposure to pyridaben Division, (7506C), Office of Pesticide statement of the factual issues on which from its us on apples, pears, citrus and Programs, Environmental Protection a hearing is requested, the requestor’s almonds will utilize 11.8 percent of the Agency, 401 M St., SW., Washington, contentions on such issues, and a RfD for the general population and 74% DC 20460. Office location and telephone summary of any evidence relied upon for non-nursing infants < 1 year old number: Crystal Mall #2, Rm 1128, 1921 by the requestor (40 CFR 178.27). A which is the most exposed Jefferson Davis Hwy., Arlington, VA request for a hearing will be granted if subpopulation. EPA generally has no 703–305–5805. the Administrator determines that the concern for exposures below 100 material submitted shows the following: percent of the RfD because the RfD VII. Summary of Findings There is genuine and substantial issue represents the level at or below which of fact; there is a reasonable possibility Tolerances are time limited to allow daily aggregate dietary exposure over a that available evidence identified by the for development and review of lifetime will not pose an appreciable requestor would, if established, resolve additional residue field trials, long term risk to human health. one or more of such issues in favor of storage stability studies, and revised the requestor, taking into account 2. Aggregate risks. Based upon the analytical enforcement methodology. uncontested claims or facts to the available data and assumptions used for The analysis for pyridaben using contrary; and resolution of the factual dietary and water exposure and risk anticipated residue levels shows that issues in the manner sought by the estimates, the population group the proposed uses will not cause requestor would be adequate to justify estimated to be the most highly exposed exposure to exceed the levels at which the action requested (40 CFR 178.32). to pyridaben is non-nursing infants (< 1 EPA believes there is an appreciable Information submitted in connection year old), with a risk estimate from risk. All population subgroups with an objection or hearing request combined sources equaling 74 percent examined by EPA are exposed to may be claimed confidential by marking of the RfD. (Dietary exposure pyridaben residues at levels below 100 any part or all of that information as contributes 74% of the RfD and drinking percent of the RfD for chronic effects. CBI. Information so marked will not be water contributes less than 1% of the Based on the information and data disclosed except in accordance with RfD). EPA therefore concludes that there considered, EPA concludes that the procedures set forth in 40 CFR part 2. is reasonable certainty that no harm will proposed time-limited tolerances will be A copy of the information that does not result to Consumers, including infants safe. Therefore the tolerances are contain CBI must be submitted for and children from aggregate exposure of established as set forth in this inclusion in the public record. pyridaben residues. document. Information not marked confidential 26960 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations may be disclosed publicly by EPA the FFDCA clarify that no proposal is Parts without prior notice. required for such rulemakings and Commodity per Expiration/Rev- hence that the RFA is inapplicable. mil- ocation Date IX. Public Docket Nonetheless, the Agency has previously lion The official record for this assessed whether establishing tolerances Almonds ...... 0.05 5/31/2001 rulemaking, as well as the public or exemptions from tolerance, raising Almond hulls ...... 4.0 do. version, has been established for this tolerance levels, or expanding Apple ...... 0.6 do. rulemaking under docket control exemptions adversely impact small Apple pomace, number [OPP–300492] (including entities and concluded, as a generic wet ...... 1.0 do. comments and data submitted matter, that there is no adverse impact. Cattle, fat ...... 0.05 do. electronically as described below). A (46 FR 24950, May 4, 1981). Cattle, meat ...... 0.05 do. public version of this record, including Cattle, meat by- Under 5 U.S.C. 801(a)(1)(A) of the printed, paper versions of electronic products ...... 0.05 do. Administrative Procedure Act (APA) as comments, which does not include any Citrus ...... 0.5 do. information claimed as CBI, is available amended by the Small Business Citrus oil ...... 10.0 do. Regulatory Enforcement Fairness Act of Citrus pulp, dried 1.5 do. for inspection from 8:30 a.m. to 4 p.m., Goat, fat ...... 0.05 do. Monday through Friday, excluding legal 1996 (Title II of Pub. L. 104–121, 110 Stat. 847), EPA submitted a report Goat, meat ...... 0.05 do. holidays. The official rulemaking record Goat, meat by- is located at the address in containing this rule and other required information to the U.S. Senate, the U.S. products ...... 0.05 do. ‘‘ADDRESSES’’ at the beginning of this Hog, fat ...... 0.05 do. document. House of Representatives and the Hog, meat ...... 0.05 do. Electronic comments can be sent Comptroller General of the General Hog, meat by- directly to EPA at: Accounting Office prior to publication products ...... 0.05 do. [email protected] of the rule in today’s Federal Register. Horse, fat ...... 0.05 do. Electronic comments must be This rule is not a ‘‘major rule’’ as Horse, meat ...... 0.05 do. submitted as an ASCII file avoiding the defined by 5 U.S.C. 804(2) of the APA Horse, meat by- as amended. products ...... 0.05 do. use of special characters and any form Milk ...... 0.01 do. of encryption. Comment and data will List of Subjects in 40 CFR Part 180 Pears ...... 0.75 do. also be accepted on disks in Sheep, fat ...... 0.05 do. Wordperfect 5.1 file format or ASCII file Environmental protection, Sheep, meat ...... 0.05 do. format. All comments and data in Administrative practice and procedure, Sheep, meat by- electronic form must be identified by Agricultural commodities, Pesticides products ...... 0.05 do. the docket control number [OPP– and pests, Reporting and recordkeeping 300492]. Electronic comments on this requirements. (b) Section 18 emergency exemptions. proposed rule may be filed online at Dated: May 7, 1997. [Reserved] many Federal Depository Libraries. (c) Tolerances with regional Stephen L. Johnson, registrations [Reserved] X. Regulatory Assessment Acting Director, Office of Pesticide Programs. (d) Indirect or inadvertent residues. Requirements [Reserved] Therefore, 40 CFR Chapter I is Under Executive Order 12866 (58 FR [FR Doc. 97–12912 Filed 5–15–97; 8:45 am] 51735, October 4, 1993), this action is amended as follows: BILLING CODE 6560±50±F not a ‘‘significant regulatory action’’ PART 180Ð [AMENDED] and, since this action does not impose any information collection requirements 1. In part 180: ENVIRONMENTAL PROTECTION as defined by the Paperwork Reduction AGENCY Act, 44 U.S.C. 3501 et seq., it is not a. The statutory authority for part 180 subject to review by the Office of continues to read as follows: Authority: 21 U.S.C. 346a and 371. 40 CFR Part 180 Management and Budget. In addition, this action does not impose any b. By revising § 180.494 to read as [OPP±300489; FRL±5717±5] enforceable duty or contain any follows: RIN 2070±AB78 unfunded mandate as described in the § 180.494 Pyridaben; tolerance for Unfunded Mandates Reform Act of 1995 residues. Propamocarb Hydrochloride; Pesticide (Pub. L. 104–4), or require prior Tolerance for Emergency Exemptions consultation with State officials as (a) General. Time limited tolerances specified by Executive Order 12875 (58 are established for residues of the AGENCY: Environmental Protection FR 58093, October 28, 1993), or special insecticide pyridaben [2-tert-butyl-5-(4- Agency (EPA). considerations as required by Executive tert-butylbenzylthio)-4-chloropyridazin- ACTION: Final rule. Order 12898 (59 FR 7629, February 16, 3(2H)-one] on the following plants, and 1994). of the insecticide pyridaben and its SUMMARY: This regulation establishes Because tolerance established on the metabolites (2-tert-butyl-5-[4-(1-carboxy- time-limited tolerances for residues of basis of a petition under section 408(d) 1-methylethyl)benzylthio]-4- the fungicide propamocarb of FFDCA do not require issuance of a chloropyridazin-3(2H)-one) and (2-tert- hydrochloride in or on the food proposed rule, the regulatory flexibility butyl-4-chloro-5-[4-(1,1-dimethyl-2- commodities tomatoes, tomato puree, analysis requirements of the Regulatory hydroxyethyl)benzylthio]- and tomato paste in connection with Flexibility Act (RFA), 5 U.S.C. 604(a), chloropyridazin-3(2H)-one) on animals, EPA’s granting of emergency do not apply. Prior to the recent as indicated in the following table. The exemptions under section 18 of the amendment of the FFDCA, EPA had tolerances will expire and are revoked Federal Insecticide, Fungicide, and treated such rulemakings as subject to on the dates specified in the following Rodenticide Act authorizing use of the RFA; however, the amendments to table. propamocarb hydrochloride on Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26961 tomatoes in the states of California, 408(e) and (l)(6) of the Federal Food, time-limited tolerance or exemption Florida, Maryland, New Jersey, New Drug, and Cosmetic Act (FFDCA), 21 from the requirement for a tolerance for York, Pennsylvania, and Virginia. The U.S.C. 346a(e) and (l)(6), is establishing pesticide chemical residues in food that tolerances will expire and are revoked tolerances for residues of propamocarb will result from the use of a pesticide by EPA on May 15, 1999. hydrochloride on tomatoes at 0.5 parts under an emergency exemption granted DATES: This regulation becomes per million (ppm), in tomato puree at by EPA under section 18 of FIFRA. Such effective May 16, 1997. Objections and 1.0 ppm, and in tomato paste at 3.0 tolerances can be established without requests for hearings must be received ppm. These tolerances will expire and providing notice or period for public by EPA on or before July 15, 1997. be revoked by EPA on May 15, 1999. comment. ADDRESSES: Written objections and After May 15, 1999, EPA will publish a Because decisions on section 18- hearing requests, identified by the document in the Federal Register to related tolerances must proceed before docket control number, [OPP–300489], remove the revoked tolerances from the EPA reaches closure on several policy must be submitted to: Hearing Clerk Code of Federal Regulations. issues relating to interpretation and implementation of the FQPA, EPA does (1900), Environmental Protection I. Background and Statutory Authority Agency, Rm. M3708, 401 M St., SW., not intend for its actions on such Washington, DC 20460. Fees The Food Quality Protection Act of tolerances to set binding precedents for accompanying objections and hearing 1996 (FQPA) (Pub. L. 104–170) was the application of section 408 and the signed into law August 3, 1996. FQPA requests shall be labeled ‘‘Tolerance new safety standard to other tolerances amends both the FFDCA, 21 U.S.C. 301 Petition Fees’’ and forwarded to: EPA and exemptions. et seq., and the Federal Insecticide, Headquarters Accounting Operations Fungicide, and Rodenticide Act II. Emergency Exemptions for Branch, OPP (Tolerance Fees), P.O. Box (FIFRA), 7 U.S.C. 136 et seq. Among Propamocarb hydrochloride on 360277M, Pittsburgh, PA 15251. A copy other things, FQPA amends FFDCA to Tomatoes and FFDCA Tolerances of any objections and hearing requests bring all EPA pesticide tolerance-setting Recent failures to control late blight in filed with the Hearing Clerk identified activities under a new section 408 with tomatoes and potatoes with the by the document control number, [OPP– a new safety standard and new registered fungicides, have been caused 300489], must also be submitted to: procedures. These activities are almost exclusively by immigrant strains Public Information and Records described below and discussed in of late blight (Phytophthora infestans), Integrity Branch, Information Resources greater detail in the final rule which are resistant to the control of and Services Division (7506C), Office of establishing the time-limited tolerance choice, metalaxyl. Before the immigrant Pesticide Programs, Environmental associated with the emergency strains of late blight arrived, all of the Protection Agency, 401 M St., SW., exemption for use of propiconazole on strains in the United States were Washington, DC 20460. In person, bring sorghum (61 CFR 58135, November 13, previously controlled by treatment with a copy of objections and hearing 1996)(FRL–5572–9). metalaxyl. Presently, there are no requests to Rm. 1132, CM #2, 1921 New Section 408(b)(2)(A)(i) of the fungicides registered in the United Jefferson Davis Hwy., Arlington, VA. FFDCA allows EPA to establish a States that will provide adequate control A copy of objections and hearing tolerance (the legal limit for a pesticide of the immigrant strains of late blight. requests filed with the Hearing Clerk chemical residue in or on a food) only After having reviewed their may also be submitted electronically by if EPA determines that the tolerance is submissions, EPA concurs that sending electronic mail (e-mail) to: opp- ‘‘safe.’’ Section 408(b)(2)(A)(ii) defines emergency conditions exist for the states [email protected]. Copies of ‘‘safe’’ to mean that ‘‘there is a previously listed. objections and hearing requests must be reasonable certainty that no harm will As part of its assessment of these submitted as an ASCII file avoiding the result from aggregate exposure to the specific exemptions, EPA assessed the use of special characters and any form pesticide chemical residue, including potential risks presented by residues of of encryption. Copies of objections and all anticipated dietary exposures and all propamocarb hydrochloride on hearing requests will also be accepted other exposures for which there is tomatoes, in tomato puree, and in on disks in WordPerfect 5.1 file format reliable information.’’ This includes tomato paste. In doing so, EPA or ASCII file format. All copies of exposure through drinking water and in considered the new safety standard in objections and hearing requests in residential settings, but does not include FFDCA section 408(b)(2), and EPA electronic form must be identified by occupational exposure. Section decided that the necessary tolerances the docket control number [OPP– 408(b)(2)(C) requires EPA to give special under FFDCA section 408(l)(6) would 300489]. No Confidential Business consideration to exposure of infants and clearly be consistent with the new safety Information (CBI) should be submitted children to the pesticide chemical standard and with FIFRA section 18. through e-mail. Electronic copies of residue in establishing a tolerance and These tolerances will permit the objections and hearing requests on this to ‘‘ensure that there is a reasonable marketing of tomatoes treated in rule may be filed online at many Federal certainty that no harm will result to accordance with the provisions of the Depository Libraries. infants and children from aggregate section 18 emergency exemptions and FOR FURTHER INFORMATION CONTACT: By exposure to the pesticide chemical the marketing of tomato puree and mail: Libby Pemberton, Registration residue....’’ tomato paste containing residues Division (7505W), Environmental Section 18 of FIFRA authorizes EPA resulting from the processing of treated Protection Agency, 401 M St., SW., to exempt any Federal or State agency tomatoes. Consistent with the need to Washington, DC 20460. Office location, from any provision of FIFRA, if EPA move quickly on these emergency telephone number, and e-mail address: determines that ‘‘emergency conditions exemptions in order to address an Sixth Floor, Crystal Station #1, 2800 exist which require such exemption.’’ urgent non-routine situation and to Jefferson Davis Highway, Arlington, VA This provision was not amended by ensure that the resulting food is safe and (703) 308–8326, e-mail: FQPA. EPA has established regulations lawful, EPA is issuing these tolerances [email protected]. governing such emergency exemptions without notice and opportunity for SUPPLEMENTARY INFORMATION: EPA, on in 40 CFR part 166. Section 408(l)(6) of public comment under section 408(e) as its own initiative, pursuant to section the FFDCA requires EPA to establish a provided in section 408(l)(6). Although 26962 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations these tolerances will expire and are will not pose appreciable risks to Contribution (TMRC) is an estimate of revoked by EPA on May 15, 1999, under human health. An uncertainty factor the level of residues consumed daily if FFDCA section 408(l)(5), residues of (sometimes called a ‘‘safety factor’’) of each food item contained pesticide propamocarb hydrochloride not in 100 is commonly used since it is residues equal to the tolerance. The excess of the amount specified in these assumed that people may be up to 10 TMRC is a ‘‘worst case’’ estimate since tolerances remaining in or on tomatoes, times more sensitive to pesticides than it is based on the assumptions that food tomato puree and tomato paste after that the test animals, and that one person or contains pesticide residues at the date will not be unlawful, provided the subgroup of the population (such as tolerance level and that 100 percent of pesticide is applied during the term of, infants and children) could be up to 10 the crop is treated by pesticides that and in accordance with all the times more sensitive to a pesticide than have established tolerances. If the conditions of, section 18 of FIFRA. EPA another. In addition, EPA assesses the TMRC exceeds the RfD or poses a will take action to revoke these potential risks to infants and children lifetime cancer risk that is greater than tolerances earlier if any experience based on the weight of the evidence of approximately one in a million, EPA with, scientific data on, or other the toxicology studies and determines attempts to derive a more accurate relevant information on this pesticide whether an additional uncertainty factor exposure estimate for the pesticide by indicate that the residues are not safe. is warranted. Thus, an aggregate daily evaluating additional types of EPA has not made any decisions exposure to a pesticide residue at or information (anticipated residue data about whether propamocarb below the RfD (expressed as 100 percent and/or percent of crop treated data) hydrochloride meets EPA’s registration or less of the RfD) is generally which show, generally, that pesticide requirements for use on tomatoes or considered acceptable by EPA. EPA residues in most foods when they are whether permanent tolerances for this generally uses the RfD to evaluate the eaten are well below established use would be appropriate. These chronic risks posed by pesticide tolerances. tolerances do not serve as a basis for exposure. For shorter term risks, EPA registration of propamocarb calculates a margin of exposure (MOE) IV. Aggregate Risk Assessment and hydrochloride by a State for special by dividing the estimated human Determination of Safety local needs under FIFRA section 24(c). exposure into the NOEL from the Consistent with section 408(b)(2)(D), Nor do these tolerances serve as the appropriate animal study. Commonly, EPA has reviewed the available basis for any states other than EPA finds MOEs lower than 100 to be scientific data and other relevant California, Florida, Maryland, New unacceptable. This hundredfold margin information in support of this action. Jersey, New York, Pennsylvania and of exposure is based on the same Virginia to use this pesticide on this rationale as the hundredfold uncertainty A. Toxicological Profile crop under section 18 of FIFRA without factor. EPA has evaluated the available following all provisions of section 18 as Lifetime feeding studies in two toxicity data and considered its validity, identified in 40 CFR part 166. For species of laboratory animals are completeness, and reliability as well as additional information regarding the conducted to screen pesticides for the relationship of the results of the emergency exemptions for propamocarb cancer effects. When evidence of studies to human risk. EPA has also hydrochloride, contact the Agency’s increased cancer is noted in these considered available information Registration Division at the address studies, the Agency conducts a weight concerning the variability of the provided above. of the evidence review of all relevant sensitivities of major identifiable toxicological data including short term III. Risk Assessment and Statutory subgroups of consumers, including and mutagenicity studies and structure Findings infants and children. The nature of the activity relationship. Once a pesticide toxic effects caused by propamocarb EPA performs a number of analyses to has been classified as a potential human hydrochloride are discussed below. determine the risks from aggregate carcinogen, different types of risk exposure to pesticide residues. First, assessments, e.g., linear low dose 1. Acute toxicity. Agency toxicologists EPA determines the toxicity of extrapolations or MOE calculation based have recommended that the pesticides based primarily on on the appropriate NOEL, will be developmental NOEL of 150 milligrams toxicological studies using laboratory carried out based on the nature of the per kilogram per day (mg/kg/day) from animals. These studies address many carcinogenic response and the Agency’s the rabbit developmental toxicity study adverse health effects, including (but knowledge of its mode of action. be used for acute dietary risk not limited to) reproductive effects, In examining aggregate exposure, calculations. The developmental lowest developmental toxicity, toxicity to the FFDCA section 408 requires that EPA observable effect level (LOEL) of 300 nervous system, and carcinogenicity. take into account available and reliable mg/kg/day is based on increased post- For many of these studies, a dose information concerning exposure from implantation loss (developmental) and response relationship can be the pesticide residue in the food in decreased body weight gain (maternal). determined, which provides a dose that question, residues in other foods for The population of concern for this risk causes adverse effects (threshold effects) which there are tolerances, residues in assessment is females 13+ years old. and doses causing no observed effects groundwater or surface water that is 2. Short- and intermediate-term (the ‘‘no-observed effect level’’ or consumed as drinking water, and other toxicity. OPP recommends use of the ‘‘NOEL’’). non-occupational exposures through developmental toxicity study in rabbits Once a study has been evaluated and pesticide use in gardens, lawns, or for short- and intermediate term MOE the observed effects have been buildings (residential and other indoor calculations. The maternal NOEL was determined to be threshold effects, EPA uses). Dietary exposure to residues of a 150 mg/kg/day and the LOEL of 300 mg/ generally divides the NOEL from the pesticide in a food commodity are kg/day was based on decreased body study with the lowest NOEL by an estimated by multiplying the average weight gain during gestation days 6 to uncertainty factor (usually 100 or more) daily consumption of the food forms of 18. The developmental NOEL was 150 to determine the Reference Dose (RfD). that commodity by the tolerance level or mg/kg/day. The developmental LOEL of The RfD is a level at or below which the anticipated pesticide residue level. 300 mg/kg/day was based on increased daily aggregate exposure over a lifetime The Theoretical Maximum Residue post-implantation loss. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26963

3. Chronic risk. Based on the available environment via multiple products and tolerances being considered in this chronic toxicity data, the Office of routes for a 1 day exposure is a document were granted. The Agency Pesticide Programs (OPP) has reasonably probable event. It is highly has therefore concluded that the established the RfD for propamocarb unlikely that, in 1 day, an individual potential exposures associated with hydrochloride at 0.11 milligrams(mg)/ would have multiple high-end propamocarb hydrochloride in water, kilogram(kg)/day. The RfD was exposures to the same pesticide by even at the higher levels the Agency is established based on a threshold LOEL treating their house via crack and considering as a conservative upper of 33.31 mg/kg/day in males and 33.27 crevice application, swimming in a bound, would not prevent the Agency mg/kg/day in females in a 1–year dog pool, and be maximally exposed in the from determining that there is a feeding study. The LOEL was based on food and water consumed. Additionally, reasonable certainty of no harm if the body weight gain depression, decreased the concept of an acute exposure as a tolerances are granted. food efficiency and gastritis. An single exposure does not allow for Based on the available studies used in uncertainty factor (UF) of 100 was used including post-application exposures, in EPA’s assessment of environmental risk, to account for both interspecies which residues decline over a period of propamocarb hydrochloride is relatively extrapolation and intraspecies days after application. Therefore, the non-persistent and mobility varies as a variability. An additional UF of 3 was Agency believes that residential function of soil texture and soil used to account for the lack of a NOEL. exposures are more appropriately reaction. There is no entry for 4. Cancer risk. Propamocarb included in the short-term exposure propamocarb hydrochloride in the hydrochloride is classified as a ‘‘Group scenario. In conjunction with this ‘‘Pesticides in Groundwater Data Base’’ D’’, not classifiable as to human Section 18 use, the acute dietary (food (EPA 734–12–92–001, September 1992). carcinogenicity due to inadequacy of the only) risk assessment used tolerance There is no established Maximum data. Dietary rodent studies conducted level residue values and assumed 100% Concentration Level (MCL) for residues in 1983 in Germany showed no crop treated for all commodities of propamocarb hydrochloride in evidence of carcinogenicity. The requiring tolerances, as did the time- drinking water. No drinking water registrant is currently conducting limited tolerance established for the health advisory levels have been studies in accordance with U.S. Section 18 exemption for potatoes. established for propamocarb protocols. 2. Chronic exposure— i. Dietary - food hydrochloride. exposures. For the purpose of assessing iii. Non-dietary, non-occupational B. Aggregate Exposure chronic dietary exposure from exposure—short and intermediate term In examining aggregate exposure, propamocarb hydrochloride, EPA exposure. Short- and intermediate-term FQPA directs EPA to consider available assumed tolerance level residues and aggregate exposure takes into account information concerning exposures from 100% of crop treated for the proposed chronic dietary food and water the pesticide residue in food and all use of propamocarb hydrochloride on (considered to be background exposure other non-occupational exposures. The tomatoes. These conservative level) plus indoor and outdoor primary non-food sources of exposure assumptions result in overestimation of residential exposure. Propamocarb the Agency looks at include drinking human dietary exposures. Secondary hydrochloride is registered for uses, water (whether from groundwater or residues of propamocarb hydrochloride such as lawn and ornamentals, that surface water), and exposure through are not expected to transfer to animal could result in non-occupational pesticide use in gardens, lawns, or commodities as a result of the proposed exposure and EPA acknowledges that buildings (residential and other indoor use. there may be short-, intermediate-, and uses). In evaluating food exposures, EPA ii. Drinking water exposure. Because long-term non-occupational, non-dietary takes into account varying consumption the Agency lacks sufficient water- exposure scenarios. At this time, the patterns of major identifiable subgroups related exposure data to complete a Agency has insufficient information to of consumers including infants and comprehensive drinking water risk assess the potential risks from such children. There are no established U.S. assessment for many pesticides, EPA exposure. tolerances for propamocarb has commenced and nearly completed a C. Cumulative Exposure to Substances hydrochloride, and there are no process to identify a reasonable yet with Common Mechanisms of Toxicity registered uses for propamocarb conservative bounding figure for the hydrochloride on food or feed crops in potential contribution of water related Section 408(b)(2)(D)(v) requires that, the United States. exposure to the aggregate risk posed by when considering whether to establish, 1. Acute exposure. Acute dietary risk a pesticide. In developing the bounding modify, or revoke a tolerance, the assessments are performed for a food- figure, EPA estimated residue levels in Agency consider ‘‘available use pesticide if a toxicological study has water for a number of specific pesticides information’’ concerning the cumulative indicated the possibility of an effect of using various data sources. The Agency effects of a particular pesticide’s concern occurring as a result of a 1 day then applied the estimated residue residues and ‘‘other substances that or single exposure. Drinking water is levels, in conjunction with appropriate have a common mechanism of toxicity.’’ also considered a component of the toxicological endpoints (RfD’s or acute The Agency believes that ‘‘available acute dietary exposure, however, EPA dietary NOEL’s) and assumptions about information’’ in this context might generally will not include residential or body weight and consumption, to include not only toxicity, chemistry, other non-dietary exposure as a calculate, for each pesticide, the and exposure data, but also scientific component of the acute exposure increment of aggregate risk contributed policies and methodologies for assessment. Theoretically, it is also by consumption of contaminated water. understanding common mechanisms of possible that a residential, or other non- While EPA has not yet pinpointed the toxicity and conducting cumulative risk dietary, exposure could be combined appropriate bounding figure for assessments. For most pesticides, with the acute total dietary exposure consumption of contaminated water, the although the Agency has some from food and water. However, the ranges the Agency is continuing to information in its files that may turn out Agency does not believe that aggregating examine are all below the level that to be helpful in eventually determining multiple exposure to large amounts of would cause propamocarb whether a pesticide shares a common pesticide residues in the residential hydrochloride to exceed the RfD if the mechanism of toxicity with any other 26964 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations substances, EPA does not at this time tolerance level residues on all treated the developing organism resulting from have the methodologies to resolve the crops consumed, resulting in a pesticide exposure during prenatal complex scientific issues concerning significant over-estimate of dietary development to one or both parents. common mechanism of toxicity in a exposure. The large acute dietary MOE Reproduction studies provide meaningful way. EPA has begun a pilot calculated for females 13+ years old information relating to effects from process to study this issue further provides assurance that there is a exposure to the pesticide on the through the examination of particular reasonable certainty of no harm for both reproductive capability of mating classes of pesticides. The Agency hopes females 13+ and infants and children animals and data on systemic toxicity. that the results of this pilot process will resulting from pre-natal exposure to FFDCA section 408 provides that EPA increase the Agency’s scientific propamocarb hydrochloride, even if an shall apply an additional tenfold margin understanding of this question such that additional tenfold safety factor were of safety for infants and children in the EPA will be able to develop and apply applied. case of threshold effects to account for scientific principles for better 2. Short- and intermediate-term risk. pre- and post-natal toxicity and the determining which chemicals have a Propamocarb hydrochloride is completeness of the database unless common mechanism of toxicity and registered for use on turf and EPA determines that a different margin evaluating the cumulative effects of ornamentals and EPA acknowledges of safety will be safe for infants and such chemicals. The Agency anticipates, that there may be short-, intermediate- children. Margins of safety are however, that even as its understanding , and long-term non-occupational incorporated into EPA risk assessments of the science of common mechanisms exposure scenarios. OPP has identified either directly through use of a MOE increases, decisions on specific classes a toxicity endpoint for short- and analysis or through using uncertainty of chemicals will be heavily dependent intermediate-term residential risk (safety) factors in calculating a dose on chemical specific data, much of assessment. However, no acceptable level that poses no appreciable risk to which may not be presently available. reliable exposure data to assess these humans. EPA believes that reliable data Although at present the Agency does potential risks are available at this time. support using the standard MOE and not know how to apply the information Given the time-limited nature of these uncertainty factor (usually 100 for in its files concerning common requests, the need to make emergency combined inter- and intra-species mechanism issues to most risk exemption decisions quickly, and the variability) and not the additional assessments, there are pesticides as to significant scientific uncertainty at this tenfold MOE/uncertainty factor when which the common mechanism issues time about how to aggregate non- EPA has a complete data base under can be resolved. These pesticides occupational exposure with dietary existing guidelines and when the include pesticides that are exposure, the Agency will make its severity of the effect in infants or toxicologically dissimilar to existing safety determination for this tolerance children or the potency or unusual toxic chemical substances (in which case the based on those factors which it can properties of a compound do not raise Agency can conclude that it is unlikely reasonably integrate into a risk concerns regarding the adequacy of the that a pesticide shares a common assessment. standard MOE/safety factor. mechanism of activity with other 3. Chronic risk. Using the Based on current toxicological data substances) and pesticides that produce conservative TMRC exposure requirements, the data base for a common toxic metabolite (in which assumptions described above, EPA has propamocarb hydrochloride relative to case common mechanism of activity concluded that aggregate exposure to pre- and post-natal toxicity is not will be assumed). propamocarb hydrochloride from food complete. Although two acceptable EPA does not have, at this time, will utilize 3 percent of the RfD for the prenatal developmental toxicity studies available data to determine whether U.S. population. EPA generally has no (in rats and rabbits) have been propamocarb hydrochloride has a concern for exposures below 100 submitted to the Agency, the available common mechanism of toxicity with percent of the RfD because the RfD rat reproductive toxicity study is not other substances or how to include this represents the level at or below which adequate. The RfD Committee pesticide in a cumulative risk daily aggregate dietary exposure over a considered it to be supplementary and assessment. Unlike other pesticides for lifetime will not pose appreciable risks not upgradeable based on the lack of which EPA has followed a cumulative to human health. Despite the potential systemic toxicity at dose levels, which risk approach based on a common for exposure to propamocarb did not achieve the limit dose, mechanism of toxicity, propamocarb hydrochloride in drinking water from indicating inadequacy of the high dose hydrochloride does not appear to non-dietary, non-occupational exposure, for reproductive toxicity. Thus produce a toxic metabolite produced by EPA does not expect the aggregate conclusions concerning post-natal other substances. For the purposes of exposure to exceed 100% of the RfD. sensitivity cannot be made. this tolerance action, therefore, EPA has EPA concludes that there is a reasonable In the developmental toxicity study in not assumed that propamocarb certainty that no harm will result from rabbits, the developmental and maternal hydrochloride has a common aggregate exposure to propamocarb NOELs were both 150 mg/kg/day. The mechanism of toxicity with other hydrochloride residues. developmental and maternal LOELs of substances. 300 mg/kg/day were based on increased E. Determination of Safety for Infants post-implantation loss (developmental) D. Determination of Safety for U.S. and Children and decreased body weight gain Population In assessing the potential for (maternal). The NOELs and LOELs 1. Acute risk. The acute dietary MOE additional sensitivity of infants and occurred at the same doses for for females 13+ years old (accounts for children to residues of propamocarb developmental and maternal findings; both maternal and fetal exposure) is hydrochloride, EPA considered data there was no indication of pre-natal 8,333. This MOE calculation was based from developmental toxicity studies in sensitivity for infants and children. on the developmental NOEL of 150 mg/ the rat and rabbit and a 2-generation In the developmental toxicity study in kg/day from the developmental toxicity reproduction study in the rat. The rats, the developmental NOEL was 221 study in rabbits. This risk assessment developmental toxicity studies are mg/kg/day and was below the maternal also assumed 100% crop treated with designed to evaluate adverse effects on NOEL (740 mg/kg/day). The Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26965 developmental LOEL of 740 mg/kg/day anyone who is interested in pesticide that available evidence identified by the was based on increased fetal death, and residue enforcement from: By mail, requestor would, if established, resolve an increased incidence of minor skeletal Calvin Furlow, Public Information and one or more of such issues in favor of anomalies (incomplete ossification of Records Integrity Branch, Information the requestor, taking into account some vertebrae and sternebrae). The Resources and Services Division uncontested claims or facts to the maternal NOEL was 740 mg/kg/day, (7506C), Office of Pesticide Programs, contrary; and resolution of the factual based on increased maternal death, Environmental Protection Agency, 401 issues in the manner sought by the spastic gait and decreased body weight M St. SW., Washington, DC 20460. requestor would be adequate to justify at the LOEL of 2,210 mg/kg/day. These Office location and telephone number: the action requested (40 CFR 178.32). findings indicate the possibility of Crystal Mall #2, Rm 1128, 1921 Jefferson Information submitted in connection increased prenatal sensitivity of fetuses Davis Hwy., Arlington, VA 703–305– with an objection or hearing request to in utero exposure to propamocarb. 5805. may be claimed confidential by marking An additional uncertainty factor of any part or all of that information as VI. Conclusion 10x for infants and children is Confidential Business Information (CBI). appropriate for propamocarb Therefore, tolerances in connection Information so marked will not be hydrochloride, based upon the lack of with the FIFRA section 18 emergency disclosed except in accordance with data to evaluate postnatal exposure (due exemptions are established for residues procedures set forth in 40 CFR part 2. to the inadequate reproduction study) of propamocarb hydrochloride in or on A copy of the information that does not and based upon the increased tomatoes at 0.5 parts per million (ppm), contain CBI must be submitted for sensitivity to prenatal exposure tomato puree at 1.0 ppm, and tomato inclusion in the public record. (indicated by the rat developmental paste at 3.0 ppm. Information not marked confidential study NOELs). EPA has concluded that VII. Objections and Hearing Requests may be disclosed publicly by EPA the percent of the RfD that will be without prior notice. utilized by chronic dietary (food) The new FFDCA section 408(g) exposure to residues of propamocarb provides essentially the same process VIII. Public Docket hydrochloride ranges from 2% for for persons to ‘‘object’’ to a tolerance The official record for this nursing infants (<1 year old) up to 8% regulation issued by EPA under new rulemaking, as well as the public for non-nursing infants (<1 year old). section 408(e) and (l)(6) as was provided version, has been established for this The uncertainty factor will not raise the in the old section 408 and in section rulemaking under docket control percent of the RfD utilized above the 409. However, the period for filing number [OPP–300489] (including level of concern (100%). Additionally, objections is 60 days, rather than 30 comments and data submitted the RfD calculation assumes tolerance days. EPA currently has procedural electronically as described below). A level residues for all commodities and is regulations which govern the public version of this record, including therefore an over-estimate of dietary submission of objections and hearing printed, paper versions of electronic risk. Refinement of the dietary risk requests. These regulations will require comments, which does not include any assessment by using anticipated residue some modification to reflect the new information claimed as CBI, is available data would reduce dietary exposure. law. However, until those modifications for inspection from 8:30 a.m. to 4 p.m., The addition of potential exposure from can be made, EPA will continue to use Monday through Friday, excluding legal propamocarb hydrochloride residues in those procedural regulations with holidays. The official rulemaking record drinking water is not expected to result appropriate adjustments to reflect the is located at the address in in an exposure which would exceed the new law. ‘‘ADDRESSES’’ at the beginning of this RfD. Any person may, by July 15, 1997, file document. written objections to any aspect of this Electronic comments can be sent V. Other Considerations regulation and may also request a directly to EPA at: The metabolism of propamocarb hearing on those objections. Objections [email protected] hydrochloride in tomatoes is adequately and hearing requests must be filed with Electronic comments must be understood for the purposes of this the Hearing Clerk, at the address given submitted as an ASCII file avoiding the tolerance. A CODEX MRL of 1 mg/kg above (40 CFR 178.20). A copy of the use of special characters and any form has been established for residues of objections and/or hearing requests filed of encryption. Comment and data will propamocarb per se in/on tomatoes. The with the Hearing Clerk should be also be accepted on disks in use pattern used for determining the submitted to the OPP docket for this Wordperfect 5.1 file format or ASCII file CODEX MRL differs from that in this rulemaking. The objections submitted format. All comments and data in section 18 exemption (maximum use must specify the provisions of the electronic form must be identified by rate overseas is 3.2 lbs active regulation deemed objectionable and the the docket control number [OPP– ingredient(ai)/acre per application, the grounds for the objections (40 CFR 300489]. Electronic comments on this maximum use rate in the United States 178.25). Each objection must be proposed rule may be filed online at is 0.9 lbs ai/acre). No Canadian or accompanied by the fee prescribed by many Federal Depository Libraries. Mexican residue limits have been 40 CFR 180.33(i). If a hearing is established. The residue of concern for requested, the objections must include a IX. Regulatory Assessment the purposes of these tolerances is statement of the factual issues on which Requirements propamocarb hydrochloride. a hearing is requested, the requestor’s Under Executive Order 12866 (58 FR The proposed enforcement method contentions on such issues, and a 51735, October 4, 1993), this action is designated UPSR 22/91 (MRID No. summary of any evidence relied upon not ‘‘a significant regulatory action’’ 439840–04) submitted with petition by the requestor (40 CFR 178.27). A and, since this action does not impose 6F4707 is adequate to support the request for a hearing will be granted if any information collection requirements proposed time-limited tolerances. The the Administrator determines that the as defined by the Paperwork Reduction method has been adequately material submitted shows the following: Act, 44 U.S.C. 3501 et seq., it is not radiovalidated for recovery of parent There is genuine and substantial issue subject to review by the Office of compound. The method is available to of fact; there is a reasonable possibility Management and Budget. In addition, 26966 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations this action does not impose any iii. By adding and reserving SUPPLEMENTARY INFORMATION: BLM enforceable duty, or contain any paragraphs (a), (c), and (d). published a final rule in the Federal ‘‘unfunded mandates’’ as described in Register of February 28, 1997 (62 FR Title II of the Unfunded Mandates § 180.499 Propamocarb hydrochloride; 9093), amending the bonding provisions tolerances for residues. Reform Act of 1995 (Pub. L. 104–4), or of the regulations on hardrock mining require prior consultation as specified (a) General. [Reserved] on public lands under the Mining Law by Executive Order 12875 (58 FR 58093, (b) Section 18 emergency exemptions. of 1872 (30 U.S.C. 22 et seq.). In the October 28, 1993) or special Time-limited tolerances are established preamble of the final rule, because of an consideration as required by Executive for residues of the fungicide editing error, the final two sentences in Order 12898 (59 FR 7629, February 16, propamocarb hydrochloride in the last paragraph of the third column 1994). connection with use of the pesticide on page 9095 appear to contradict each Because FFDCA section 408(l)(6) under section 18 emergency exemptions other in explaining when operators permits establishment of this regulation granted by EPA. The tolerances will working under an existing notice must without a notice of proposed expire and are revoked on the dates provide a certification under the rulemaking, the regulatory flexibility specified in the following table. regulations. This document corrects that analysis requirements of the Regulatory error. Expiration/ Flexibility Act, 5 U.S.C. 604(a), do not Commodity Parts per Revocation In rule FR Doc. 97–5016, published apply. Nonetheless, the Agency has million Date on February 28, 1997 (62 FR 9093), previously assessed whether make the following correction. On page establishing tolerances or exemptions 9095, in the last paragraph of the third from tolerance, raising tolerance levels, ***** column, revise the final sentence to read or expanding exemptions adversely Tomatoes ...... 0.5 May 15, 1999 as follows: ‘‘For existing notices on file impact small entities and concluded, as Tomato, puree .... 1.0 May 15, 1999 with BLM under which operations have a generic matter, that there is no adverse Tomato, paste .... 3.0 May 15, 1999 not yet begun, the claimant or operator impact. (46 FR 24950) (May 4, 1981). will have to provide the certification Under 5 U.S.C. 801(a)(1)(A) of the (c) Tolerance with regional before initiating operations.’’ registrations. [Reserved] Small Business Regulatory Enforcement Dated: May 9, 1997. Fairness Act of 1996 (Title II of Pub. L. (d) Indirect or inadvertent residues. Bob Armstrong, 104–121, 110 Stat. 847), EPA submitted [Reserved] Assistant Secretary of the Interior. a report containing this rule and other [FR Doc. 97–12908 Filed 5–15–97; 8:45 am] [FR Doc. 97–12822 Filed 5–15–97; 8:45 am] required information to the U.S. Senate, BILLING CODE 6560±50±F the U.S. House of Representatives and BILLING CODE 4310±84±P the Comptroller General of the General Accounting Office prior to publication DEPARTMENT OF THE INTERIOR of the rule in today’s Federal Register. FEDERAL COMMUNICATIONS This rule is not a ‘‘major rule’’ as Bureau of Land Management COMMISSION defined by 5 U.S.C. 804(2). 43 CFR Part 3800 47 CFR Part 73 List of Subjects in 40 CFR Part 180 [MM Docket No. MM 87±268; FCC 97±116] Environmental protection, [WO±660±4120±02±24 1A] Administrative practice and procedure, Advanced Television Systems RIN 1004±AC40 Agricultural commodities, Pesticides AGENCY: and pests, Reporting and recordkeeping Federal Communications Mining Claims Under the General Commission. requirements. Mining Laws; Surface Management ACTION: Final rule. Dated: May 8, 1997. AGENCY: Bureau of Land Management, SUMMARY: This Report and Order Peter Caulkins, Interior. amends the Commission’s rules by Acting Director, Registration Division, Office ACTION: Final rule; correction. adopting service rules to implement of Pesticide Programs. digital television. The intended effect of SUMMARY: The Bureau of Land Therefore, 40 CFR Chapter I is this action is to promote rapid Management (BLM) published in the amended as follows: conversion to and implementation of Federal Register of February 28, 1997, digital television. This Report & Order a final rule amending the bonding PART 180Ð[AMENDED] contains new or modified information provisions of the regulations on mining collections subject to the Paperwork 1. The authority citation for part 180 on public lands under the Mining Law Reduction Act of 1995 (PRA), Public continues to read as follows: of 1872. The preamble of that final rule Law 104–13. It will be submitted to the Authority: 21 U.S.C. 346a and 371. contained an editing error creating an Office of Management and Budget 2. Section 180.499 is amended as internal contradiction in the preamble. (OMB) for review under section 3507(d) follows: This document corrects that error. i. By redesignating the existing text as of the PRA. OMB, the general public, EFFECTIVE DATE: Effective on May 16, paragraph (b), revising the introductory and other Federal agencies are invited to 1997. text of newly designated paragraph (b), comment on the new or modified in the third column to the table by ADDRESSES: Inquiries or suggestions information collections contained in changing ‘‘March 15, 1999’’ to ‘‘3/15/ should be sent to the Solid Minerals this proceeding. 99’’, and alphabetically adding entries Group at Director (320), Bureau of Land DATES: Effective Dates: The new rules for tomatoes; tomato paste and tomato Management, Room 501 LS, 1849 C are effective June 16, 1997. Written puree. Street, N.W., Washington, D.C. 20240. comments by the public on the new ii. By correctly alphabetizing the entry FOR FURTHER INFORMATION CONTACT: and/or modified information collections for ‘‘milk’’ in the table. Richard Deery, (202) 452–0350. are due July 15, 1997. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26967

ADDRESSES: In addition to filing 2. The Telecommunications Act of (OVS) providers, and others vie, or will comments with the Secretary, a copy of 1996 (‘‘1996 Act’’) provided that initial soon vie, with broadcast television for any comments on the information eligibility for any advanced television audience. Many operators in those collections contained herein should be licenses issued by the Commission services are poised to use digital. The submitted to Judy Boley, Federal should be limited to existing viability of digital broadcast television Communications Commission, Room broadcasters, conditioned on the will require millions of Americans to 234, 1919 M Street, N.W., Washington, eventual return of either the current 6 purchase digital television equipment. DC 20554, or via the Internet to MHz channel or the new digital Because of the advantages to the [email protected]. channel. Today we adopt rules to American public of digital technology— FOR FURTHER INFORMATION CONTACT: Saul implement the statute. Our rules are both in terms of services and in terms Shapiro, Mass Media Bureau, (202) 418– designed to give digital television the of efficient spectrum management—our 2600, Gretchen Rubin, Mass Media greatest chance to meet its potential. We rules must strengthen, not hamper, the Bureau, Policy and Rules Division, (202) recognize the challenges that will be possibilities for broadcast DTV’s 418–2120; Mania K. Baghdadi, Mass faced by broadcasters in adopting this success. Media Bureau, Policy and Rules new technology. Accordingly, we have 4. In the Fourth Further Notice/Third Division, Legal Branch, (202) 418–2130; generally refrained from regulation and Inquiry (60 FR 42130, August 15, 1995), Dan Bring, Mass Media Bureau, Policy have sought to maximize broadcasters’ we outlined the goals of: ‘‘(1) preserving and Rules Division, Policy Analysis flexibility to provide a digital service to a free, universal broadcasting service; Branch, (202) 418–2170, or Gordon meet the audience’s needs and desires. (2) fostering an expeditious and orderly Godfrey, Mass Media Bureau, Policy Where appropriate, however, we have transition to digital technology that will and Rules Division, Engineering Policy adopted rules we believe will ensure a allow the public to receive the benefits Branch, (202) 418–2190. For additional smooth transition to digital television of digital television while taking information concerning the information for broadcasters and viewers. These account of consumer investment in collections contained in this Report and rules include an aggressive but NTSC television sets; (3) managing the Order contact Judy Boley at 202–418– reasonable construction schedule, a spectrum to permit the recovery of 0214, or via the Internet at requirement that broadcasters continue contiguous blocks of spectrum, so as to [email protected]. to provide a free, over-the-air television promote spectrum efficiency and to allow the public the full benefit of its SUPPLEMENTARY INFORMATION: This is a service, and a simulcasting requirement spectrum; and (4) ensuring that the synopsis of the Commission’s Fifth phased in at the end of the transition spectrum—both ATV channels and Report and Order in MM Docket No. period. Further, we recognize that recovered channels—will be used in a 87–268; FCC 97–116, adopted April 3, digital broadcasters remain public manner that best serves the public 1997 and released April 21, 1997. The trustees with a responsibility to serve interest.’’ In the context of the full text of this Commission decision is the public interest. implementation of a DTV standard, we available for inspection and copying II. Issue Analysis also enumerated the goals: ‘‘(1) to during normal business hours in the A. Goals ensure that all affected parties have FCC Reference Center (Room 239), 1919 sufficient confidence and certainty in 3. Digital technology holds great M Street, N.W., Washington, D.C., and order to promote the smooth promise. It allows delivery of brilliant, also may be purchased from the introduction of a free and universally high-definition, multiple digital-quality Commission’s copy contractor, available digital broadcast television programs, and ancillary and International Transcription Service, service; (2) to increase the availability of supplementary services such as data Inc., 2100 M Street, N.W., Suite 140, new products and service to consumers transfer. In recent years, competition in Washington, D.C., 20037, (202) 857– through the introduction of digital 3800. the video programming market has broadcasting; (3) to ensure that our rules dramatically intensified. Cable, Direct Synopsis of Report and Order encourage technological innovation and Broadcast Satellite (DBS), Local competition; and (4) to minimize I. Introduction Multipoint Distribution System (LMDS), regulation and assure that any 1. Television has played a critical role wireless cable, Open Video Systems regulations that we do adopt remain in in the United States in the second half effect no longer than necessary.’’ These of the twentieth century. A FCC Rcd 7024 (1991) (‘‘Notice’’); Second Report and Order/Further Notice of Proposed Rule Making goals can be distilled into the two technological breakthrough—digital in MM Docket No. 87–268, 7 FCC Rcd 3340 (1992) essential objectives that underlie the television—now offers the opportunity (‘‘Second Report/Further Notice’’); Second Further decisions we make today. for broadcast television service to meet Notice of Proposed Rule Making (57 FR 38652, 5. First, we wish to promote and the competitive and other challenges of August 26, 1992) in MM Docket No. 87–268, 7 FCC preserve free, universally available, 1 Rcd 5376 (1992) (‘‘Second Further Notice’’); the twenty-first century. Memorandum Opinion and Order/Third Report and local broadcast television in a digital Order/Third Further Notice of Proposed Rule world. Only if DTV achieves broad 1 This Fifth Report and Order follows the Making (57 FR 53588, November 12, 1992) in MM acceptance can we be assured of the adoption of a standard for the transmission of Docket No. 87–268, 7 FCC Rcd 6924 (1992) (‘‘Third preservation of broadcast television’s digital television. Fourth Report and Order (62 FR Report/Further Notice’’); Fourth Further Notice of 14006, March 25, 1997) in MM Docket No. 87–268, Proposed Rule Making/Third Notice of Inquiry (60 unique benefit: free, widely accessible 11 FCC Rcd 17771 (1996) (‘‘Fourth Report and FR 42130, August 15, 1995) in MM Docket No. 87– programming that serves the public Order’’). We have previously issued the following 268, 10 FCC Rcd 10541 (1995) (‘‘Fourth Further interest. DTV will also help ensure documents in this proceeding. Notice of Inquiry (52 Notice/Third Inquiry’’); Fifth Further Notice of robust competition in the video market FR 34259, September 10, 1987) in MM Docket No. Proposed Rule Making (61 FR 26864, May 29, 1996) 87–268, 2 FCC Rcd 5125, 5127 (1987) (‘‘First in MM Docket No. 87–268, 11 FCC Rcd 6235 (1996) that will bring more choices at less cost Inquiry’’); Tentative Decision and Further Notice of (‘‘Fifth Further Notice’’); Sixth Further Notice of to American consumers. Particularly Inquiry in MM Docket No. 87–268, 3 FCC Rcd 6520 Proposed Rule Making (61 FR 43209, August 21, given the intense competition in video (1988) (‘‘Second Inquiry’’); First Report and Order 1996) in MM Docket No. 87–268, 11 FCC Rcd 10968 programming, and the move by other (55 FR 39275, September 26, 1990) in MM Docket (1996) (‘‘Sixth Further Notice’’). We note that we No. 87–268, 5 FCC Rcd 5627 (1990) (‘‘First Order’’); also adopt today the Sixth Report and Order, MM video programming providers to adopt Notice of Proposed Rule Making (56 FR 58207, Docket No. 87–268, FCC 97–115, released April 21, digital technology, it is desirable to November 18, 1991) in MM Docket No. 87–268, 6 1997 (‘‘Sixth Report and Order’’). encourage broadcasters to offer digital 26968 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations television as soon as possible. We make which to operate a DTV station during MHz channels for DTV purposes decisions today designed to promote the the transition period.2 We also noted ‘‘represents the optimum balance of viability of digital television services. that the DTV transmission system was broadcast needs and spectrum Digital broadcasters must be permitted designed for a 6 MHz channel and efficiency.’’ We do not believe that the freedom to succeed in a competitive added that ‘‘we continue to believe that greater spectrum efficiency can be market, and by doing so, attract providing 6 MHz channels for ATV achieved by adopting a different consumers to digital. In addition, purposes represents the optimum channel size. Indeed, use of 6 MHz broadcasters’ ability to adapt their balance of broadcast needs and channels would facilitate spectrum services to meet consumer demand will spectrum efficiency.’’ 3 Nonetheless, we efficiency because making the DTV be critical to a successful initiation of invited comment on any means of channel the same width as the analog DTV. achieving greater spectrum efficiency, channel will afford greater flexibility at 6. Second, we wish to promote and, in this section, we will discuss the end of the transition in terms of the spectrum efficiency and rapid recovery whether 6 MHz channels should be choice of channel the broadcaster of spectrum. Decisions that promote the allotted. retains for DTV purposes. success of digital television—our first 9. Comments. All broadcasters filing 12. Moreover, contrary to those goal—promote this goal as well. The comments support affording a second 6 comments that disagreed with allotting more quickly that broadcasters and MHz channel per broadcaster for DTV. 6 MHz channels for DTV, we believe consumers move to digital, the more Joint Broadcasters, for example, state that the use of 6 MHz channels is rapidly spectrum can be recovered and that the entire 6 MHz is required; necessary to provide viewers and then be reallocated or reassigned, or assigning less would deprive the public consumers the full benefits of digital both. The faster broadcasters roll out of HDTV and set back the transition, television made possible by the DTV digital television, the earlier we can because the Grand Alliance system Standard, including high definition recover spectrum. presupposes 6 MHz channels, and television (‘‘HDTV’’), standard 7. Our decisions today further these anything different would require an definition television, and other digital goals. They ensure that broadcasters entirely new design and testing services. The DTV Standard was have more flexibility in their business. program. Additionally, equipment premised on the use of 6 MHz channels. Broadcasters will be able to experiment manufacturers generally support the To specify a different channel size at with innovative offerings and different provision of 6 MHz channels for DTV this late date would not promote our service packages as they continue to purposes, noting that 6 MHz of goals in adopting the DTV Standard and provide at least one free program service spectrum is required for HDTV would prolong the conversion to DTV. and meet their public-interest broadcasts. Specifically, we believe that failing to obligations. We choose to impose few 10. However, Media Access Project, et specify a 6 MHz channel would restrictions on broadcasters and to allow al. (‘‘MAP’’) argues that the Commission undermine our goals, expressed in the them to make decisions that will further should provide broadcasters only Fourth Report and Order (62 FR 14006, their ability to respond to the enough spectrum to provide one ‘‘free’’ March 25, 1997), of fostering an marketplace. We leave to broadcasters’ digital program service, either by expeditious and orderly transition to business judgment such decisions as allocating less than 6 MHz channels to digital technology and managing the whether to provide high definition broadcasters, by allocating the spectrum spectrum to permit the recovery of television or whether, initially, to to others and only affording contiguous blocks of spectrum and simulcast the NTSC stream on DTV, and broadcasters ‘‘must carry’’ rights; or by promote spectrum efficiency. The what and how many ancillary and allocating the spectrum to broadcasters conversion to DTV would undoubtedly supplementary services to provide. To but requiring them to lease out excess be significantly delayed if we set aside aid the launch of digital services, we capacity to unaffiliated programmers. the longstanding expectations of the provide for a rapid construction of Further, Home Box Office (‘‘HBO’’) parties, on which they have based the digital facilities by network-affiliated asserts that if the Commission technology and established their plans, stations in the top markets, in order to determines that the public interest and specified a different channel expose a significant number of demands Standard Definition Television bandwidth. Accordingly, we reaffirm households, as early as possible, to the (‘‘SDTV’’) or other auxiliary our earlier judgment and will allot 6 benefits of DTV. We require those most applications, it must take another look MHz channels for DTV. able to bear the risks of introducing at whether an entire 6 MHz slice of new C. Eligibility digital television to proceed most spectrum should go to incumbent quickly. Our decisions here will foster broadcasters. 13. Background. We proposed to limit the swift development of DTV, which 11. Decision. We invited comment in initial eligibility for DTV channels to should enable us to meet our target of the Fourth Further Notice/Third Inquiry existing broadcasters. Our proposed ending NTSC service by 2006. To permit (60 FR 42130, August 15, 1995) on any criteria for existing broadcasters careful monitoring of the development means of achieving greater spectrum included full-service television of digital television and an opportunity efficiency. Based on the comments, we broadcast station licensees, permittees to reassess the decisions we make today, continue to believe that providing 6 authorized as of October 24, 1991, and we intend to conduct a review of DTV parties with applications for a every two years until the cessation of 2 Fourth Further Notice/Third Inquiry, (60 FR construction permit on file as of October NTSC service. 42130, August 15, 1995) supra at 10543. We 24, 1991, who are ultimately awarded a decided to continue use of the 6 MHz channel early full-service broadcast license. After B. Channel Bandwidth in this proceeding. Third Report/Further Notice (57 FR 53588, November 12, 1992), supra at 6926; see release of the Fourth Further Notice/ 8. Background. In the Fourth Further also First Order, supra at 5627–29. Third Inquiry (60 FR 42130, August 15, Notice/Third Inquiry, (60 FR 42130, 3 Fourth Further Notice/Third Inquiry (60 FR 1995), Congress statutorily addressed August 15, 1995), we noted that we had 42130, August 15, 1995), supra at 10543. Indeed, eligibility in the 1996 Act. Congress the DTV Standard subsequently adopted in the previously decided that DTV would be Fourth Report and Order (62 FR 14006, March 25, instructed the Commission to limit the introduced by assigning existing 1997) (‘‘DTV Standard’’) is predicated upon the use initial eligibility for advanced television broadcasters a temporary channel on of a 6 MHz channel. licenses to persons that, as of the date Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26969 of the issuance of the licenses, are perform a market-by-market analysis to television broadcast station or a permit licensed to operate a television determine which LPTV stations could to construct such a station, or both.4 broadcast station or hold a permit to be accommodated; absent that, it could 18. We will continue our previously construct such a station. The 1996 Act minimize the effect on LPTV stations by adopted policy to limit initial eligibility did not change the fact that the adding a second phase to the process of for DTV licenses to existing full-power Commission lacks statutory authority to creating a Table of Allotments to broadcasters. We previously determined auction broadcast spectrum. address the accommodation of LPTV that there is insufficient spectrum to 14. Comments. We sought comment service next, after it has begun the include LPTV stations and translators, on the potential impact of the eligibility conversion process for full power which are secondary under our rules restriction on the Commission’s policy television licensees. It offers suggestions and policies, to be initially eligible for of fostering programming and a DTV channel. As we noted in the on how to carry out this phase. ownership diversity. Few commenters Sixth Further Notice (61 FR 43209), in WatchTV, Inc. also argues that the address this topic. However, some order to provide DTV allotments for Commission should make unused commenters address the basic issue of existing full service stations, it will be the eligibility restriction. For example, digital channels available to existing necessary to displace LPTV stations and some argue that allowing broadcasters to low power operators on the same terms TV translator stations to some degree, offer subscription services without and conditions as it may adopt for small especially in major markets. We have opening up that opportunity to market broadcasters and educational not been able to find a means of competitors would violate the legal licensees before it allows new entrants resolving this problem. However, we principles enunciated in Ashbacker to apply. Additionally, White Eagle note that limiting initial eligibility to Radio Corporation v. FCC, 326 U.S. 327 Partners believes that LPTV stations full-power broadcasters does not (1945), discussed below. Others should be eligible to receive 6 MHz DTV necessarily exclude LPTV stations from maintain that the Commission faces an channels. the conversion to digital television. Ashbacker problem unless it mandates 16. Still other LPTV commenters Moreover, in the Sixth Further Notice that broadcasters provide HDTV. argue that neither LPTV stations nor full (61 FR 43209), we made a number of General Instrument argues that service stations should be afforded a proposals to mitigate the impact on ‘‘allowing existing broadcasters too second 6 MHz channel. Community LPTV stations, and, in the Sixth Report much ‘‘flexible use’ of the 6 MHz ATV Broadcasters Association (‘‘CBA’’) and Order, we adopt a number of allocation raises the Ashbacker problem believes that a dual channel DTV measures intended to minimize the by changing the primary service scenario would be an inefficient use of impact of DTV implementation on LPTV provided rather than merely modifying spectrum, requiring not only immense service. existing licenses,’’ but that the private investment, but also leading to D. Definition of Service Commission could avoid Ashbacker a host of logistical and other problems problems by requiring that the that will negate many of the benefits of 1. Spectrum Use predominant use of the DTV spectrum DTV. CBA argues that full power and 19. Background. The Fourth Further be for HDTV transmission. HBO argues LPTV stations should be permitted to Notice/Third Inquiry (60 FR 42130, that if we were to allow the DTV convert to DTV on their present channel August 15, 1995) reaffirmed our channel to be put to uses other than at any time. intention to preserve and promote HDTV, for which broadcasters have no universal, free, over-the-air television. 17. Decision. In the 1996 Act, more established interest or expertise We recognized that broadcast television Congress specifically addressed the than potential competing applicants, the has become an important part of eligibility issue. Congress provided that public interest rationale for granting the American life and thus stated ‘‘we spectrum to incumbents without a the Commission ‘‘should limit the envision that the 6 MHz channel competitive process would evaporate. initial eligibility for [DTV] licenses to earmarked for [DTV] will be used for 15. Another eligibility issue raised by persons that, as of the date of such free, over-the-air broadcasting.’’ We also commenters concerns the restriction of issuance, are licensed to operate a recognized the increased flexibility that initial eligibility to full-service television broadcast station or hold a DTV offered broadcasters and noted that licensees. LPTV commenters such as permit to construct a station (or both) ‘‘allowing at least some level of Abacus Television point out the ** *. ’’ In comments filed before flexibility would increase the ability of contribution that LPTV stations make in passage of the 1996 Act, some parties providing television service to broadcasters to compete in an argue that granting incumbent increasingly competitive marketplace, underserved areas as well as the local broadcasters the exclusive right to apply and specialized nature of the services and would allow them to serve the for the DTV spectrum raises potential public with new and innovative they provide. These comments also problems under Ashbacker Radio contend that the Commission has long services.’’ Corporation v. FCC, 326 U.S. 327 (1945), 20. The DTV Standard, adopted by the found that diversification of mass media and its progeny. Other commenters Commission in the Fourth Report and ownership serves the public interest by argue similarly that Ashbacker concerns promoting diversity of program and are raised unless the Commission 4 Our eligibility criteria are consistent with the service viewpoints and by preventing imposes an HDTV mandate. However, provisions of section 336 of the 1996 Act. 47 U.S.C. undue concentration of economic given Congress’ explicit direction, there § 336. We have made the initial assignment of power. According to Abacus Television, channels in the accompanying Sixth Report and excluding LPTV from the analog to is now no statutory basis to question the Order and adopted criteria for the allotment of digital transition would undermine Commission’s authority to limit initial additional DTV channels. We will give particular eligibility to existing broadcasters. consideration for assigning temporary DTV these principles. Further, Abacus channels to new licensees who applied on or before argues, it would exclude the vast Following Congress’ direction, we October 24, 1991, given the reliance that these majority of minority television licensees determine that initial eligibility should parties may have placed on rules we adopted before and permittees and is antithetical to be limited to those broadcasters who, as passage of the 1996 Act. Second Report/Further of the date of issuance of the initial Notice (57 FR 21755, May 22, 1992), supra, at 3343, increasing ownership diversity. Abacus clarified, Third Report/Further Notice (57 FR 53588, argues that the Commission should licenses, hold a license to operate a November 12, 1992), supra at 6932–33. 26970 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations

Order (62 FR 14006, March 25, 1997), subscription services, and, if permitted, should be for free over-the-air television permits broadcasters to offer a variety of how such services should be defined, and a minimum number of HDTV hours services. It allows broadcasters to offer how much of the DTV capacity should should be broadcast, the Commission free television of higher resolution than be allowed for such uses, and what, if should permit flexible uses of the DTV analog technology. It allows the any, regulation would be appropriate for channel. Cohen, Dippell and Everist broadcast of at least one, and under such services. argues that a broadcaster should be some circumstances two, high definition 22. Comments. Most commenters permitted to provide new and television programs; and it allows support affording flexibility to innovative services that do not cause ‘‘multicasting,’’ the simultaneous broadcasters to provide ancillary and objectionable interference to existing transmission of three, four, five, or more supplementary services. Joint users, provided that the primary use is digital programs. The Standard also Broadcasters favor the provision of any broadcasting to the general public. allows for the broadcast of CD-quality ancillary and supplementary services 25. NYNEX and Personal audio signals. And it permits the rapid other than those limited by the Communications Industry Association delivery of large amounts of data: an Telecommunications legislation then (‘‘PCIA’’) urge that the primary use of entire edition of the local newspaper in pending. Viacom urges that DTV the DTV channel should be free over- less than two seconds, sports licensees should be authorized to the-air broadcasting. NYNEX urges that information, computer software, explore the full potential of the ATSC allowing broadcasters to provide telephone directories, stock market DTV system as long as those uses do not nonbroadcast and subscription services updates, interactive educational adversely affect the broadcaster’s free would threaten free, universal materials and, indeed, any information video service. AAPTS/PBS favors broadcasting and should be permitted that can be translated into digital bits. ancillary broadcast and nonbroadcast only as a residual use of spectrum In addition to allowing broadcasters to use of the DTV channel, noting that capacity. PCIA urges that a DTV transmit video, voice, and data flexible use will serve the public licensee should be permitted to offer simultaneously, the DTV Standard interest by helping to spur development broadcast-related services, such as allows broadcasters to do so of new technologies and to provide closed captioning, pay programming, dynamically, meaning that they can greater opportunities for noncommercial broadcast or narrowcast audio service, switch back and forth quickly and stations to enhance their public service and home shopping, but should not be easily. For example, a broadcaster could to their respective communities. A allowed to offer mobile radio services transmit a news program consisting of noncommercial station could, for like paging without open competition four separate SDTV programs for local example, utilize digital transmission to for DTV licenses by all qualified news, national news, weather and distribute program-related course applicants. Golden Orange suggests that sports; while interrupting that materials, textbooks, student and the Commission should permit all types programming with a single high teacher guides, computer software and of broadcast ancillary services that do definition television commercial with content areas of the World Wide Web as not cause interference to the primary embedded data about the product; or part of the station’s instructional HDTV requirement it urges the transmit a motion picture in a high programming. Further, noncommercial Commission to adopt, but that the definition format, while simultaneously stations could use ancillary and Commission should not permit using the excess capacity for supplementary services, without regard nonbroadcast services or non-TV to the educational content, as a revenue subscription services. HBO argues that transmission of data unrelated to the source to support nonprofit services and the second channel should be used for movie. operations and the transition to DTV. HDTV and opposes affording 21. In light of the flexibility and new 23. Microsoft argues that licensees broadcasters flexible use of the channel, capabilities of digital television, we should be given maximum flexibility to but adds that if the Commission permits asked to what extent we should permit provide a wide variety of services and flexibility in the use of the channel, it broadcasters to use their DTV spectrum any definition of free over-the-air should nonetheless require that a for uses other than free, over-the-air broadcasting should be narrowly substantial portion of the day be television. Recognizing that defined in the DTV environment. Texas devoted to HDTV programming. The broadcasters are currently allowed to Instruments, Inc. (‘‘Texas Instruments’’) Benton Foundation opposes spectrum use a portion of their broadcast argues that it is premature for the flexibility as affording broadcasters an spectrum for ancillary or supplementary Commission to regulate the mix of DTV unfair competitive advantage over uses that do not interfere with the services by requiring a certain amount competitors and argues that the primary broadcast signal, we asked of capacity to be used for video principal use of the second channel, whether we should permit such uses of programming; freedom from regulatory defined as a minimum of 75% of the DTV spectrum, and, if so, how such restraints will enhance television’s capacity, should be for broadcast. uses should be defined and what functionality and appeal beyond 26. Broadcasters, as a group, express portion of the DTV system’s capacity entertainment to encompass new and their staunch support for the should be allowed for such ancillary unforeseen services. continuation of our tradition of and supplementary services. Assuming 24. Equipment manufacturers such as universal and free broadcast television. we permitted ancillary and General Instrument, Motorola, For example, the comments of the Joint supplementary services, we also asked Thomson, and Zenith, and EIA urge that Broadcasters, a group constituting a to what extent we should allow the Commission should permit flexible wide cross-section of broadcast broadcasters to use DTV spectrum for use of the DTV channel consistent with television stations and networks, services that go beyond traditional the preservation of free over-the-air emphasize broadcasters’ commitment to broadcast television or ancillary and television and as long as there is a provision of free television service. supplementary uses analogous to those substantial commitment to HDTV. ALTV, Pacific FM, and Busse argue that allowed under the current regulatory Motorola, however, supports a more broadcasters should be required to offer structure. We also asked whether restrictive definition of ancillary at least one free over-the-air channel broadcasters should be permitted to services. The Digital Grand Alliance enhanced by digital technology but provide nonbroadcast and/or states that, while the predominant use should otherwise be unfettered as to the Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26971 services they provide. MAP and the 30. This decision is supported by the here fully complies with those Benton Foundation argue that because overwhelming weight of the record. parameters. Thus, under section broadcasters will receive free and Consistent with precedent that has 336(b)(2), the Commission is required to exclusive use of the broadcast spectrum, treated telecommunications services limit ancillary and supplementary free, over-the-air broadcasting should provided by an NTSC station other than services to avoid derogation of any comprise no less than 75% of a the regular television program service as advanced television services that the broadcaster’s capacity. ancillary, we will consider as ancillary Commission may require. The 27. Decision. As we have noted and supplementary any service Commission has exercised its discretion before, an overarching goal of this provided on the digital channel other and is requiring broadcasters to proceeding is to promote the success of than free, over-the-air services. In continue to provide the free over-the-air a free, local television service using addition, we will not impose a service on which the public has come to digital technology. Broadcast requirement that the ancillary and rely. We herein require that any television’s universal availability, supplementary services provided by the appeal, and the programs it provides— broadcaster must be broadcast-related. ancillary and supplementary services for example, entertainment, sports, local 31. The approach we take here, of broadcasters provide will not derogate and national news, election results, allowing broadcasters flexibility to that required service. Further, section weather advisories, access for provide ancillary and supplementary 336(b)(1) requires that the Commission candidates and public interest services is supported both generally and may only permit broadcasters to offer programming such as education specifically by the 1996 Act, enacted ancillary or supplementary services ‘‘if television for children—have made after issuance of the Fourth Further the use of a designated frequency for broadcast television a vital service. It is Notice/Third Inquiry (60 FR 42130, such services is consistent with the a service available free of charge to August 15, 1995). In general, the 1996 technology or method designated by the anyone who owns a television set, Act seeks ‘‘[t]o promote competition and Commission for the provision of currently 98% of the population. reduce regulation in order to secure advanced television services* * *.’’ 28. We expect that the fundamental lower prices and higher quality services 33. Moreover, we believe that the use of the 6 MHz DTV license will be for American telecommunications approach we take here will serve the for the provision of free over-the-air consumers and encourage the rapid public interest by fostering the growth deployment of new telecommunications television service. In order to ease the of innovative services to the public and technologies.’’ More importantly, the transition from our current analog by permitting the full possibilities of the 1996 Act specifically gives the broadcasting system to a digital system, DTV system to be realized. One of our we will require broadcasters to provide Commission discretion to determine, in goals is to promote spectrum efficiency. on their digital channel the free over- the public interest, whether to permit Encouraging an expeditious transition the-air television service on which the broadcasters to offer such services. from analog to digital television and a public has come to rely. Specifically, section 336(a)(2) of the Communications broadcasters must provide a free digital Act, contained in section 201 of the quick recovery of spectrum will video programming service the 1996 Act, provides that if the promote that goal. By permitting resolution of which is comparable to or Commission issues additional licenses broadcasters to assemble packages of better than that of today’s service and for advanced television services, it services that consumers desire, we will aired during the same time periods that ‘‘shall adopt regulations that allow the promote the swift acceptance of DTV their analog channel is broadcasting. 5 holders of such licenses to offer such and the penetration of DTV receivers 29. We wish to preserve for viewers ancillary or supplementary services on and converters. That, in turn, will help the public good of free television that is designated frequencies as may be promote the success of the free widely available today. At the same consistent with the public interest, television service. As discussed above, time, we recognize the benefit of convenience, and necessity.’’ digital television promises a wealth of permitting broadcasters the opportunity 32. Section 336(b)(2) sets out the possibilities in terms of the kinds and to develop additional revenue streams specific parameters of our authority to numbers of enhanced services that from innovative digital services. This permit ancillary and supplementary could be provided to the public. Indeed, 6 will help broadcast television to remain services, and the approach we take we believe that giving broadcasters a strong presence in the video flexibility to offer whatever ancillary programming market that will, in turn, 6 Section 336(b) of the Communications Act, also added by section 201 of the 1996 Act, provides that and supplementary services they choose help support a free programming in prescribing the regulations required by Section may help them attract consumers to the service. Thus, we will allow 336(a), the Commission shall: service, which will, in turn, hasten the broadcasters flexibility to respond to the (1) only permit such licensee or permittee to offer ancillary or supplementary services if the use of a transition. In addition, the flexibility we demands of their audience by providing designated frequency for such services is consistent authorize should encourage ancillary and supplementary services with the technology or method designated by the entrepreneurship and innovation. For that do not derogate the mandated free, Commission for the provision of advanced example, it may encourage the over-the-air program service. Ancillary television services; (2) limit the broadcasting of ancillary or development of compression and supplementary services could supplementary services on designated frequencies technologies that could allow even more include, but are not limited to, so as to avoid derogation of any advanced television digital capacity on a 6 MHz channel, subscription television programming, services, including high definition television paving the way for multiple high computer software distribution, data broadcasts, that the Commission may require using such frequencies; definition programs and more free transmissions, teletext, interactive (3) apply to any other ancillary or supplementary services, audio signals, and any other service such of the Commission’s regulations as are quality of the signal used to provide advanced services that do not interfere with the applicable to the offering of analogous services by television services, and may adopt regulations that any other person, except that no ancillary or stipulate the minimum number of hours per day required free service. supplementary service shall have any rights to that such signal must be transmitted; and carriage under section 614 or 615 or be deemed to 5 For example, a broadcaster who provides be a multichannel video programming distributor (5) prescribe such other regulations as may be programming on its analog channel from 6:00 am for purposes of section 628; necessary for the protection of the public interest, until midnight must provide a free over-the-air (4) adopt such technical or other requirements as convenience, and necessity. digital signal during those hours. may be necessary or appropriate to assure the (6) 47 U.S.C. § 336(b). 26972 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations programming than would otherwise be services to be provided to the public, mandating an HDTV minimum serves offered. and would allow for a more rapid no public interest because it does not 34. There is no public interest harm transition to digital broadcasting, the increase the number of voices in the in permitting ancillary and Commission requested comment as to marketplace or contribute to the civic supplementary services; indeed, to the whether it should require broadcasters discourse of democracy. contrary, allowing such services to provide a minimum amount of high 39. Support for a minimum HDTV contributes to efficient spectrum use definition television and, if so, what requirement is expressed by three and can expand and enhance use of minimum amount should be required. networks, HBO, NYNEX Corporation, existing spectrum. In this case, Comments. Many commenters are receiver manufacturers, Viacom, Golden technological advancements, i.e., digital opposed to a minimum HDTV Orange Broadcasting Co., Inc. (‘‘Golden technology, have made it possible for requirement. Commenters urging the Orange’’), and the National Consumers broadcasters to provide continuing free, Commission not to apply a minimum League. Supporters of a minimum over-the-air service and still have the HDTV requirement but rather to leave requirement generally argue that a capacity to provide other innovative that determination to the marketplace requirement will help promote the early services. It would be contrary to the and thus to broadcasters and viewers availability of HDTV programming, public interest to handicap broadcasters include the National Association of create demand for HDTV receivers, in providing these services and to Broadcasters (‘‘NAB’’), ALTV, the stimulate the market, and speed the deprive consumers of the opportunity to Benton Foundation, Microsoft transition. Golden Orange, for example, notes that without HDTV, the public purchase the services they desire. We Corporation, Telemundo Group, Inc. note, however, that we will review our will not be motivated to buy receivers. (‘‘Telemundo’’), and AAPTS/PBS. NAB flexible approach to permitted ancillary HBO argues that the legal and policy notes that mandating a certain amount and supplementary services during the principles that justify awarding of HDTV could impair broadcasters’ periodic reviews established herein and incumbent broadcasters a second ability rapidly to fuel development of make adjustments to our rules as channel for DTV do not permit the DTV market with complementary needed. broadcasters to use this second channel program offerings and could prolong the 35. We note that the 1996 Act requires for any thing other than HDTV transition to digital television. NAB the Commission to establish a fee programming, and, if the FCC allows states: ‘‘By providing maximum program for ancillary or supplementary other than HDTV programming, it services provided by digital licensees if latitude, the Commission will encourage should require that a substantial portion subscription fees are required in order development of diverse new of the broadcast day, especially during to receive such services or if the programming services that will facilitate dayparts and prime time, be devoted licensee directly or indirectly receives the most rapid acceptance of ATV and exclusively to HDTV. These compensation from a third party in lead to the most rapid return of NTSC commenters vary on the amount of return for transmitting material spectrum.’’ ALTV states that a minimum HDTV programming that should be furnished by such third party (other HDTV requirement would be required and on how the minimum than commercial advertisements used to burdensome and, moreover, superfluous should be implemented. support broadcasting for which a because the broadcast industry has 40. While believing that the subscription fee is not required). We maintained its commitment to marketplace is the best determinant of will issue a Notice to consider proposals implement HDTV. According to ALTV, the optimum balance between HDTV as to how that statutory provision independent stations rely on syndicated and other DTV services, Joint should be implemented. and local programming, which is less Broadcasters support a minimum HDTV 36. In addition, consistent with the likely to be produced in an HDTV requirement if necessary to assure 1996 Act, non-broadcast services format, so a minimum HDTV HDTV a fair chance in the marketplace. provided by digital licensees will be requirement would have a Joint Broadcasters also declare their regulated in a manner consistent with disproportionately burdensome impact support for HDTV as the ‘‘centerpiece’’ analogous services provided by other on independents. ALTV states that any of the digital television system and note persons or entities. We already follow minimum HDTV requirement, if and the commitment of many broadcast such an approach with respect to when justified by future circumstances, organizations to provide HDTV. MAP, ancillary and supplementary services should be adopted later in the which supports allotting only enough provided by NTSC licensees, for transition, as more HDTV programming capacity to broadcasters to provide one example, on the VBI and the video comes on the market. Telemundo notes free, over-the-air, digital program portion of the analog signal. that a minimum HDTV requirement service, argues accordingly that there is would negatively impact foreign little reason for the Commission to 2. High Definition language stations and networks, many of mandate HDTV. However, MAP notes 37. Background. In the Fourth Further which feature programming produced that the only justification for affording Notice/Third Inquiry (60 FR 42130, outside the United States, where HDTV broadcasters exclusive use of the entire August 15, 1995), the Commission noted production is likely to lag domestic 6 MHz of spectrum is that they will that the Grand Alliance system would HDTV production. AAPTS and PBS, in deliver significant amounts of HDTV provide broadcasters new flexibility and joint comments, oppose a minimum programming. new capabilities to provide not only HDTV requirement, noting that the 41. Decision. Our decisions today, and high definition television but also Commission can rely on broadcasters our previous adoption of the DTV multiple program streams, as well as a and public television’s commitment to Standard, give broadcasters the variety of nonvideo and/or subscription- HDTV, and argue that if the Commission opportunity to provide high definition based services. After noting that adopts an HDTV requirement, it should television programming, but we decline allowing at least some level of flexibility be ‘‘liberally waived’’ for to impose a requirement that would increase the ability of noncommercial stations (particularly broadcasters provide a minimum broadcasters to compete in an those analog stations that may share a amount of such programming and, increasingly competitive marketplace, DTV channel in the transition). The instead, leave this decision to the would permit new and innovative Benton Foundation argues that discretion of licensees. The DTV Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26973

Standard will allow broadcasters to offer 43. We have also been persuaded by federal elective office and must afford the public high definition television, as the arguments that a minimum high ‘‘equal opportunities’’ to candidates for well as a broad variety of other definition television requirement would any public office and that weekly they innovative services. We believe that we be burdensome on some broadcasters. must provide three hours of children’s should allow broadcasters the freedom We note the arguments of ALTV and educational programming. Licensees to innovate and respond to the Telemundo as to the difficulties a must also adhere to restrictions on the marketplace in developing the mix of minimum high resolution television airing of indecent programming and services they will offer the public. In requirement might impose on must comply with the 1996 Act this regard, we endeavor to carry out the independent stations and foreign provisions relating to the rating of video premises of the 1996 Act which, as language stations, respectively. We programming. In the Fourth Further noted above, seeks ‘‘[t]o promote acknowledge the contributions of such Notice/Third Inquiry, the Commission competition and reduce regulation in stations and the programming they noted that these current public interest order to secure lower prices and higher provide to the diversity of our broadcast rules were developed under the analog quality services for American television service and hesitate to impose model and therefore were shaped by the telecommunications consumers and a requirement that might make it more limitations inherent in analog encourage the rapid deployment of new difficult for such stations to convert to technology. The Commission sought telecommunications technologies.’’ digital television, perhaps even comment on whether the greater There is no reason to involve the undermining their ability to do so. We capabilities afforded by digital government in a decision that should are not convinced that high definition technology should affect licensees’ properly be based on marketplace television programming should be obligations to serve the public interest, demand. The 1996 Act specifically mandated where to mandate it might and if so, how those obligations might affords the Commission discretion impose significant burdens on stations, be adapted to the digital context. whether or not to require minimum high particularly where, as will be discussed 46. Comments. Commenters generally resolution television programming.7 below, it appears that the marketplace agree that existing public interest will provide high definition television obligations should continue to apply, at 42. Our decisions to adopt the DTV programming even absent a the very least, to free, over-the-air Standard and to use 6 MHz channels governmental requirement to that effect. programming on DTV. They differ permit broadcasters to provide high 44. We note that some commenters greatly, however, on whether, and if so, definition television in response to argued that a high definition television how, the public interest obligation viewer demand. If we do not mandate mandate is necessary to give program should be applied and possibly a minimum amount of high resolution producers and equipment expanded in a DTV world. Joint television, we anticipate that stations manufacturers the necessary incentives Broadcasters argue that public interest may take a variety of paths: some may to support high resolution television, obligations should continue to apply to transmit all or mostly high resolution and to provide viewers and consumers NTSC through the transition, and to all television programming, others a enough high resolution television the DTV services, but that there is no smaller amount of high resolution programming to foster demand for such need to impose additional obligations television, and yet others may present programming and to drive DTV receiver on the transition channel. ALTV no HDTV, only SDTV, or SDTV and purchases. To the contrary, however, we comments that on DTV, free broadcast other services. We do not know what believe that a minimum high definition television service should continue to be consumers may demand and support. television requirement is unnecessary to subject to the public interest obligations Since broadcasters have incentives to achieve these goals. We note in this now applied to NTSC, but that no discover the preferences of consumers regard that broadcasters and networks public interest obligations should apply and adapt their service offerings have emphasized their commitment to to nonbroadcast services. General accordingly, we believe it is prudent to high definition television. We find Instrument argues that public-interest leave the choice up to broadcasters so nothing in the record that identifies a obligations should attach to free, over- that they may respond to the demands market failure or other reason to impose the-air broadcasting on DTV, but that for of the marketplace. A requirement now a governmental requirement for high provision of subscription services, could stifle innovation as it would rest definition television. High definition broadcasters should be required to pay on a priori assumptions as to what television will afford broadcasters an a fee to compensate the public. services viewers would prefer. important tool in the increasingly 47. Some commenters offered specific Broadcasters can best stimulate competitive video programming market. proposals on how the broadcasters’ consumers’ interest in digital services if There is no reason to believe that a public-interest obligations could be able to offer the most attractive government mandate is necessary to reconceptualized and adapted in light of programs, whatever form those may ensure that high definition television the new possibilities offered by digital take, and it is by attracting consumers gets a fair chance in the marketplace. technology. MAP argues that public to digital, away from analog, that the interest obligations should apply to each spectrum can be freed for additional E. Public Interest Obligations program service, including subscription uses. Further, allowing broadcasters 45. Background. As we stated in the services, provided over DTV spectrum. flexibility as to the services they provide Fourth Further Notice (60 FR 42130, MAP proposes that broadcasters be will allow them to offer a mix of August 15, 1995), the rules imposing required to provide ‘‘new and different services that can promote increased public interest obligations on broadcast public service in exchange for the consumer acceptance of digital licensees originate in the statutory opportunity to convert to digital television, which, in turn, will increase mandate that broadcasters serve the television, including free time for broadcasters’ profits, which, in turn, ‘‘public interest, convenience, and political candidates, noncommercial will increase incentives to proceed necessity,’’ as well as other provisions public access, and dedication of 20% of faster with the transition. of the Communications Act. These total program time to children’s obligations include the requirements educational and informational 7 47 U.S.C. 336(b)(2), adopted by section 201 of that broadcasters must provide programming.’’ Alliance for Community the 1996 Act. ‘‘reasonable access’’ to candidates for Media suggests that, at a minimum, 26974 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations public interest guidelines should 50. Some argue that broadcasters’ DTV channel. We requested comment contain a quantitative measure of public interest obligations in the digital on this proposal. programming including: local news and world should be clearly defined and 52. Comments. Broadcasters are information; educational programs for commensurate with the new divided on the necessity of a simulcast children and adults; material helpful to opportunities provided by the digital requirement. Numerous comments note nonprofit, charitable, health, or social- channel broadcasters are receiving. that simulcasting is certain to occur service organizations; and programs to Others contend that our current public even in the absence of a mandate. The allow elected officials and nonprofit interest rules need not change simply Joint Broadcasters emphasize that they organizations to communicate to the because broadcasters will be using believe that much simulcasting of NTSC community. The Benton Foundation digital technology to provide the same programming on the DTV channel urges that broadcasters be required to broadcast service to the public. We are would happen in the normal course. provide, for example, at least six hours not resolving this debate today. Instead, However, because broadcasters have of children’s educational television, free at an appropriate time, we will issue a differing views on the need for a time for candidates, and access to Notice to collect and consider all views. requirement, the group declined to take programming time by members of the As we authorize digital service, a position on that issue. NAB and ALTV community. however, broadcast licensees and the maintain that a simulcast requirement 48. Decision. In this proceeding we public are on notice that existing public would be counterproductive and may seek to promote the successful interest requirements continue to apply delay development and penetration of transition of analog broadcast television to all broadcast licensees. Broadcasters DTV, especially during the early stages into a digital broadcast television and the public are also on notice that of the transition. However, NAB service that serves the public interest. the Commission may adopt new public acknowledges that a phase-in of Broadcasters have long been subject to interest rules for digital television. Thus simulcasting near the end of the the obligation to serve the ‘‘public as to the public interest, our action transition could be an effective means of interest, convenience and necessity.’’ 8 today forecloses nothing from our preventing disenfranchisement of the In the 1996 Act, Congress provided that consideration. remaining NTSC viewers. ABC and CBS argue that a simulcast requirement broadcasters’ public interest obligations F. Transition extend into the digital environment: should apply from the outset of the (d) Public Interest Requirement.—Nothing 1. Simulcast transition. CBS argues that a simulcast in this section shall be construed as relieving 51. Background. In our 1992 Second requirement could spur the sale of DTV a television broadcasting station from its Report/Further Notice (57 FR 21755, equipment and ensure that DTV and obligation to serve the public interest, May 22, 1992), we determined that DTV NTSC broadcast services do not evolve convenience, and necessity. In the licensees should simulcast on their into separately programmed services. Commission’s review of any application for NBC supports a 50% simulcasting renewal of a broadcast license for a television NTSC channel the programming offered on their DTV channel. Specifically, we requirement to allow for some station that provides ancillary or innovation. Broadcasters and other adopted, as a preliminary matter, a 50 supplementary services, the television commenters arguing against the licensee shall establish that all of its program percent simulcasting requirement, advisability of a simulcast requirement services on the existing or advanced beginning one year after the six-year maintain that rigid requirements would television spectrum are in the public interest. application and construction period, hamper broadcasters’ ability to promote increasing to 100 percent two years In enacting this provision, Congress and provide the programming that was later.9 Our early simulcast decisions clearly provided that broadcasters have most likely to draw viewers to the DTV were based on the expectation that DTV public interest obligations on the channel. They argue that transition to would primarily consist of the broadcast program services they offer, regardless DTV would occur most rapidly if of whether they are offered using analog of a single HDTV program service. broadcasters had the maximum or digital technology. However, as DTV technology developed, flexibility to experiment with new 49. In the digital television era, we learned that DTV would be able to services and to put together offerings although many aspects of the business do much more than we initially that would best satisfy viewers. and technology of broadcasting may be expected and that it would be possible Commenters point out that simulcasting different, broadcasters will remain to transmit multiple simultaneous SDTV would slow the transition by preventing trustees of the public’s airwaves. Our program services on a single 6 MHz broadcasters from enticing viewers to current rules were developed when channel. Recognizing that a licensee DTV by making desirable programming technology permitted broadcasters to would be unable to simulcast multiple available on DTV that is not available on provide just one stream of programming program services on its NTSC channel, NTSC. ALTV also argues that any over a 6 MHz channel. We recognize, we stated in the Fourth Further Notice requirement would be based on however, that digital technology (60 FR 42130, August 15, 1995) that our speculation about the development of expands the effective capacity of 6 MHz simulcast requirement must be revisited digital service, and therefore imposition of spectrum. For example, it permits, and we must consider alternatives. In of any rule, if necessary at all, should be but does not require, licensees to addition, we stated that we still postponed. provide several program streams, as perceived a need for a simulcast 53. Equipment manufacturers well as other digital services, on the 6 requirement, albeit different from that recommend that a simulcast MHz channel of spectrum that we are first envisioned, and proposed to requirement be tailored to promote a assigning them. The dynamic and require the simulcast of all material rapid transition to HDTV and DTV and flexible nature of digital technology being broadcast on the licensee’s NTSC recovery of NTSC spectrum. The cable creates the possibility of new and channel on a program service of the industry supports a simulcast HDTV creative ways for broadcasters to serve service, that is the broadcast of one the country and the public interest. 9 Additionally, we indicated that we would program over two channels to the same review this schedule at the time of our initial review of the pace of conversion at the end of the area at the same time. Public-interest 8 47 U.S.C. sections 307(a), 309(a); En Banc application/construction period and immediately groups generally support requiring DTV Programming Inquiry, 44 FCC 2303, 2312 (1960). prior to the imposition of 100 percent simulcasting. broadcasters to simulcast their NTSC Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26975 service on the DTV channel. digital channel and broadcasters have 58. Comments. Those commenters, Commenters supporting a simulcast indicated that they will simulcast NTSC which include broadcasters, networks, requirement argue that such a programs on the DTV channel even in and equipment manufacturers, who requirement would expedite the the absence of a requirement. address this issue largely support our transition from analog to digital by 56. While we believe that a simulcast revised proposal for a single, paired guaranteeing that popular programming requirement is not warranted during the license. One commenter, broadcaster services continue to be available, in early years of the transition, there are Golden Orange, argues that the DTV and enhanced technical quality, on the DTV benefits to a simulcast requirement near NTSC stations should have separate channel. They also point out that the end of the transition period. Such a licenses. simulcasting would prevent the requirement will help ensure that 59. Decision. We adopt our tentative development of two separately consumers will enjoy continuity of free conclusion, echoed by nearly all those programmed services, which might over-the-air program service when we who commented, that the NTSC and delay the transition. As to the question reclaim the analog spectrum at the DTV facilities should be licensed under of phase-in, the Digital Grand Alliance conclusion of the transition period. It a single, paired license. As determined suggests that simulcast requirements be may be difficult to terminate analog earlier, this system will help the minimal in the early years of the broadcast service if broadcasters show Commission and broadcasters alike by transition to facilitate innovative HDTV programs on their analog channels but keeping administrative burdens down. It programming, and more comprehensive not on their digital channels. We believe is also consistent with our intention to in the later years to avoid perpetuating that it will be easier to terminate analog treat the DTV license and the NTSC unique NTSC programming that would services and reclaim the spectrum at the license together for the purposes of make it difficult to cease NTSC end of the transition if most broadcast revoking or not renewing a license. broadcasts. Throughout the transition, households are capable of receiving Once broadcasters have satisfied one DTV program stream should be DTV signals and these households do construction and transmission requirements, they will receive a single, identical to the program stream carried not suffer the loss of a current program paired license for the DTV and NTSC on the NTSC channel. service only offered on analog channels. 54. Decision. We decline to adopt a facilities. Thus, we will require a phased-in simulcast requirement for the early 60. One of our objectives is to simulcasting requirement as follows: By years of the transition. In order to help promote broadcasters’ ability to build the sixth year from the date of adoption reclaim spectrum at the end of the digital businesses so that their valuable of this Report and Order, we adopt a transition period, however, we adopt by free programming service will continue. 50% simulcasting requirement; by the the sixth year from the date of adoption We anticipate that some licensees may seventh year, we adopt a 75% of this Report and Order a requirement find it beneficial to develop simulcasting requirement; by the eighth of 50% simulcasting of the video partnerships with others to help make year, we adopt a 100% simulcasting programming of the analog channel on the most productive and efficient use of the DTV channel; by the seventh year, requirement which will continue until their channels. We intend to give a 75% simulcasting requirement; by the the analog channel is terminated and broadcasters flexibility in structuring eighth year, a 100% simulcasting the analog spectrum returned. We business arrangements and attracting requirement, until the analog channel is recognize that we will need to define capital to build a successful DTV terminated and that spectrum returned. clearly ‘‘simulcasting’’ in the context of business. One of our overarching 55. We have previously recognized DTV and will do so as part of our two- objectives is to promote the success of the need to afford broadcasters year reviews or other appropriate digital television. We anticipate that flexibility to program their DTV proceeding. some licensees may find it beneficial to channels to attract consumers, 2. Licensing of DTV and NTSC Stations develop partnerships with others to especially during the critical launch help make the most productive and phase of DTV. We do not adopt a 57. Background. The Second Report/ efficient use of their channel, and we simulcast requirement during the early Further Notice (57 FR 21755, May 22, will look with favor on such years of the transition in order to give 1992) determined to treat the licensee as arrangements. Broadcasters may find it broadcasters the ability to experiment having two separate licenses. In the useful to work with other broadcasters with program and service offerings. We Fourth Further Notice/Third Inquiry (60 or others who have special expertise in are convinced by commenters who FR 42130, August 15, 1995), however, exploiting digital technology. Parties argue that many consumers’ decisions to the Commission tentatively concluded could come together for the sharing of invest in DTV receivers will depend on that substantial benefits could be facilities, costs, and equipment, the the programs, enhanced features, and obtained if the NTSC and ATV facilities development and provision of services that are not available on the were instead authorized under a single, programming and service offerings, NTSC service, and a simulcast unified license. The Commission access to capital and financing, the requirement might limit broadcasters’ tentatively decided that such a policy establishment of business plans, and the ability to experiment with the full range would ease administrative burdens on like. Such arrangements will aid both of digital capabilities. Because the DTV the Commission and broadcasters alike broadcaster and public, by helping the channels represent valuable resources by reducing the number of applications broadcaster achieve the most with large opportunity costs, we believe that would have to be filled out, filed, competitive and beneficial business licensees will have economic incentives and processed, and would be consistent strategy and by ensuring for the public to provide programming and services with our authority under section 316 of the best use of the digital spectrum, that will attract consumers to DTV. In the Act to modify an existing license. including not only the most efficient use any event, a simulcast requirement Licensing the two facilities under a of the spectrum but also the greatest during this initial transition phase single license would also retain the array of valuable services. Variations on appears to be unnecessary because the policy announced in the Second Report/ partnerships have arisen in other record suggests that marketplace forces Further Notice of treating both facilities contexts, which indicates that they are will ensure that the best NTSC the same for revocation/nonrenewal efficient and useful. For example, in the programming will be simulcast on the purposes. common network/affiliate relationship, 26976 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations a network provides programming and certain markets, unless we established a those with religious or specialty advertising that its affiliates may use. clear framework for the DTV transition. formats—may have difficulty making a Another example is the Commission’s 63. The Fourth Further Notice/Third timely transition. NAB suggests that the authorization of Instructional Television Inquiry (60 FR 42130, August 15, 1995) construction deadline be staggered on a Fixed Services (ITFS) licensees to lease, proposed a procedure by which market-by-market basis, in which large- for profit, their excess capacity to other broadcasters would have six months in market stations have six years, and service providers. We are receptive to which to make an election and confirm small-market stations have three or six the establishment of like arrangements to the Commission that they want a DTV additional years, to complete in the DTV context. Whatever the license. After that, they would have the construction, and in addition that arrangement, it is the licensee who remainder of the three-year period in waivers for problems such as zoning remains responsible for ensuring the which to supply any required approvals also be available. The fulfillment of all obligations incumbent supporting data, and a total of six years Association of Federal Communications upon a broadcast licensee. to complete construction. If they would Consulting Engineers argues that the elect not to construct a DTV facility, or G. Application/Construction Period six-year implementation period is would elect but then fail to construct, inadequate, given the number of stations 61. Background. The Second Report/ their NTSC licenses would expire at the that will need to acquire transmission Further Notice (57 FR 21755, May 22, end of the DTV conversion period, and equipment, input/monitoring 1992) adopted a two year application they would be required to cease equipment, and tower structures during period and an additional three years for broadcasting. We sought comment on all that limited timeframe. Christian construction of a DTV facility. We were aspects of the construction period. We Communications of Chicagoland concerned that without a specific asked whether certain classes of stations proposes that the Commission recognize timetable, some parties might delay should be afforded special relief, and if that the application/construction period construction while waiting for others to so, which classes. operate as a ‘‘guideline subject to take the lead, to the detriment of our 64. Comments. While most revision’’ rather than a set deadline. goal of expeditious DTV commenters do not specifically address 66. Others maintain that, at least in implementation. We clarified that the election period, some voice approval some cases, the six-year period is too broadcasters who did not apply and of a six-month election period.11 The long. Thomson and the Digital Grand construct within the established time Digital Grand Alliance, however, Alliance propose that the Commission period (and who failed to obtain an suggests that the six-month election shorten the application and extension of time) would lose their period be accompanied by a mechanism construction periods at least in the 25 initial eligibility for a DTV frequency. to ensure that this election represents largest markets, but do not specify what We noted that existing policies real commitment to convert, such as the period would be appropriate. General regarding extensions of time would imposition of a non-refundable Instrument proposes that a three-year afford broadcasters adequate flexibility application fee, a substantial deposit construction period be considered for to cope with unforeseen implementation refunded at commencement of DTV major markets, and a six-year period for problems.10 We defined ‘‘construction’’ broadcast, or a fine if the broadcaster smaller markets. Motorola argues that, as the capability of emitting DTV fails to commence DTV broadcast. On given the notice that broadcasters have signals, regardless of the source of these the other hand, Busse and Pacific FM been afforded, the appropriate timetable signals (e.g., local origination, pass- argue that the 6-month election period is a six-month application period, a six- through of a network signal, or other is not a viable choice, because those month processing and grant period, and signal). This definition of construction who do not want a DTV license have, a two-year construction period. would allow broadcasters to ‘‘phase-in’’ in effect, elected to go out of business 67. Decision. We will apply a full DTV implementation as their since, under the Commission’s proposal, streamlined three-stage application individual circumstances and markets all licensees will be required to cease process to the group of initially eligible permit. broadcasting in NTSC at the end of the analog permittees and licensees allotted 62. In the Third Report/Further Notice transition period. a paired channel in the DTV Table of (57 FR 53588, November 12, 1992), we 65. Commenters voice many views. Allotments.12 We will soon issue a adjusted the application deadline from Many generally support the Public Notice detailing the procedures a two-year to a three-year period, and Commission’s suggested timeframe, but to be followed, but will describe them provided for a total six-year application suggest that the Commission take briefly here. and construction period with those account of the fact that practical 68. Stage One—Initial Modification applying early having a longer portion impediments may arise to License for DTV. Pursuant to the 1996 of the six-year period to devote to implementation. While in support of the Act and the eligibility criteria discussed construction of DTV facilities. We proposal for many stations, Joint above, we issue, by this paragraph and explained that the deadlines for Broadcasters, joined by ALTV, propose the attached Appendix E, additional application and construction would that a less demanding schedule and DTV licenses to those initially eligible assist in our reclamation of the liberal waivers apply to help stations to receive them. reversion channel and our sliding scale facing difficulty, such as 69. The statute directs us to limit approach would provide sufficient relief noncommercial stations, small stations, initial eligibility for DTV licenses to to small-market stations which produce those in small or rural markets, or in persons that, as of the date of the less revenue. While we recognized that financial distress, as well as for those issuance of the licenses, are licensed to some stations would be market leaders stations that face FAA, zoning, or other operate a television broadcast station or in the implementation of DTV, we similar problems. Busse points out that hold a permit to construct such a remained concerned that such even stations in large markets—such as station, or both. As the statute leadership may not emerge, at least in contemplates, we hereby issue a license 11 See, e.g., Comments of Joint Broadcasters at 12; 10 For additional clarification of our extension Comments of Thomson at 7; Comments of General 12 We note that under section 553(b)(A), notice policies, see, Second Report/Further Notice (57 FR Instrument at 16; Comments of Golden Orange at 6; and comment are not necessary for rules of agency 21755, May 22, 1992), supra at 3347–48. Comments of New World Television at 8. procedure or practice. 5 U.S.C. 553(b)(A). Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26977 to all eligible licensees and permittees, the appropriate fee to obtain a spectrum monitoring functions and to a list of which is attached to this Report construction permit. Noncommercial radio astronomy observations, we will and Order as Appendix E. We conclude stations must file a modified Form 340. also require DTV applications to comply that it more effectively effectuates the The application must be filed before the with section 73.1030. Additionally, as congressional scheme to implement the mid-point in a particular applicant’s discussed below, the DTV service statute through a three-phased process, required construction period has contour will be required to encompass with the first phase consisting of the expired. The Bureau will begin acting the community of license. upon applications as soon as this Report initial DTV license, rather than through 74. To speed the process, we will our conventional procedure. Use of the and Order becomes effective. consider the DTV applications or conventional licensing process would 72. We will apply a certification certifications as involving a minor prevent us from establishing a date procedure for applicants that answer change in facilities 14 and will process certain at which to determine initial ‘‘yes’’ to a checklist of requirements them accordingly. Since this application eligibility, a process that is necessary to contained in the construction permit will be for a minor change, applicants allow us to establish the Table of application; these certifications will be automatically granted. Given the very will not have to supply full legal or Allotments. Thus, we hereby issue a 15 license, conditioned upon satisfaction of rapid review permitted by this financial qualifications information. the additional requirements set out in streamlined procedure, we will be able We will not initially require full- ¶ 70–75 below. This license will modify to grant a construction permit to replication of the analog station’s the analog television permit or license; broadcasters within a matter of days of coverage area by DTV facilities. however, licensees may not begin submission of this form. Other Accordingly, we will accept initial construction or transmission until the applicants will be required to furnish construction permit applications from additional conditions are met.13 The additional technical information. applicants who demonstrate that their license is also conditioned upon the 73. In the Fifth Further Notice (61 FR DTV coverage encompasses the 16 requirement that ‘‘either the additional 26864, May 29, 1996), supra at ¶ 59, we community of license. In situations license or the original license held by sought comment on whether specific TV where applicants seek a waiver of any the licensee be surrendered to the technical and procedural rules should of our requirements, we will entertain Commission for reallocation or be applied to DTV and whether requests to allow them to begin reassignment (or both) pursuant to modification of the rules was needed. Commission regulation.’’ Among those NTSC TV rules were 14 Pursuant to section 73.3572(a)(1) of the 70. Request for Cancellation. We section 73.685 and 73.1030. No Commission’s rules, a major change in a television station’s facilities is any change in frequency or presume that the recipients will comments addressed these issues. We herein establish a minimum set of community of license. 47 CFR § 73.3572(a)(1). The welcome receipt of their initial DTV change involved in constructing and operating a License and will be fully committed to technical requirements that will allow DTV facility does not constitute a change in the conversion to DTV. Nonetheless, us to process these DTV construction frequency, merely the implementation of the initial DTV License on a channel assigned in the Sixth there may be some broadcasters who do permit applications. Fundamentally, a DTV application must conform to the Report and Order. The analog site will remain on not wish to receive a second channel to the same frequency. Moreover, the DTV facility convert to DTV. We wish to reclaim DTV Table we are creating in the Sixth will, of course, be licensed to the same community, these second channels as quickly as Report and Order, specifying the since it will be part of one license. We note that in our Notice, supra at 7026, we sought comment possible so that the spectrum may be indicated channel at a transmitter site, effective radiated power (‘‘ERP’’) and as to whether, as an alternative to a dual licensing awarded to those who would use it antenna height meeting the restrictions scheme, we should treat the addition of a DTV quickly and effectively, and we earlier channel as a major modification. We now conclude imposed in that document. As described proposed a six-month election period to that it should be treated as a minor modification for in the Sixth Report and Order, the reasons discussed herein. accomplish this result. We now believe applications specifying a transmitter site 15 In the Third Report/Third Further Notice (57 that a six-month election period is too within five kilometers of the site FR 53588, November 12, 1992), supra at 6945–46, long. Given the length of this we noted that we would not relax the financial assumed in the DTV Table and also proceeding and the public benefits of qualifications showing required for a broadcast specifying an ERP and antenna height acting quickly, we believe that applicant. We were concerned that applicants that that do not exceed the values in the were not financially qualified could tie up the broadcasters have already had ample DTV Table will be accepted and not spectrum without ever obtaining the funds time to consider many options, and will necessary to build the facility, thus negating a subject to interference-protection reason for restricting eligibility to existing shorten the ‘‘election’’ period. In order processing. Further, in order to avoid to achieve the benefits of a rapid broadcasters—i.e., their ability to implement DTV exposing the public to dangerous swiftly. Our decision to treat the construction election and in the interests of spectrum situations, we will continue the NTSC permit as a minor modification, however, efficiency, we ask that licensees who eliminates the need for a financial qualifications TV practice of verifying that the FAA showing. Moreover, Congress has determined that wish to cancel the initial DTV license has made any necessary determination do so by writing the Commission within we should limit eligibility to existing broadcasters, that the proposed tower does not and we have decided to streamline the application 90 days from the release date of the DTV represent a hazard to air navigation, and process so that DTV can be implemented quickly. Table of Allotments adopted in the we will require DTV applicants to 16 While the Sixth Report and Order establishes Sixth Report and Order. the upper limit for DTV facilities, we believe that certify as to no significant we should allow construction initially of DTV 71. Stage Two—Certification or environmental impact or to include an Application for Construction Permit. To facilities that provide service to a smaller area. At environmental statement as described in the same time, stations should not be able to claim receive authorization for section 1.1307 of our rules, including that they have completed required construction commencement of construction, an consideration of RF radiation levels. In when they have built facilities that are so low in Initial DTV Licensee must file modified power that they reach no meaningful service area. addition, to avoid altering an AM radio Accordingly, as noted above, we establish the initial Form 301, attached as Appendix D, and station’s radiation pattern in a way that required coverage area as the community of license. could cause interference in the AM During the first two-year review, we will consider 13 As discussed below, we expect that the whether to modify the build-out requirement to application or certification process will be speedy radio band, we will require DTV require a full-replication facility as well as and will not delay applicants as they prepare to applications to comply with section adjustments to the protection of the full-replication implement the build-out. 73.658(h). To avoid interference to our facility. 26978 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations construction, at their own risk, prior to place in operation a facility necessary Instead, we believe that an aggressive the grant of a construction permit. for transmitting DTV, such as a tower, construction schedule should be 75. Stage Three—Application for because of delays in obtaining zoning or implemented for several reasons. License to Cover Construction Permit for FAA approvals, or similar constraints, 80. First, digital broadcast television a DTV Facility. When construction of or the lack of equipment necessary to stands a risk of failing unless it is rolled the DTV facility has been completed, transmit a DTV signal. We do not out quickly. Many operators in other the permittee may commence program anticipate that the circumstance of ‘‘lack media such as DBS, cable, and wireless tests upon notification to the FCC, of equipment’’ would include the cost of cable use or plan to use digital provided that an application for a such equipment. With respect to technology. Unless digital television license to cover the construction permit extensions of the applicable broadcasting is available quickly, other for the DTV facility, on Form 302, is construction deadline, the Commission digital services may achieve levels of filed within ten days, along with the will take into account problems penetration that could preclude the appropriate fee.17 encountered that are unique to DTV success of over-the-air, digital 76. Construction Schedule. We have conversion, and will modify its existing television. Viewers who have leased or decided to adopt the following policies regarding extensions purchased digital set-top boxes from construction requirements. Stations accordingly. Authority is delegated to competing digital media may be less affiliated with ABC, CBS, Fox and NBC the Chief of the Mass Media Bureau to likely to purchase DTV receivers or must build digital facilities in the ten grant an extension of time of up to six converters. If digital, over-the-air largest television markets by May 1, months beyond the applicable television does not succeed, however, 1999. Stations affiliated with ABC, CBS, construction deadline, upon viewers will be without a free, Fox and NBC in the top 30 television demonstration by the DTV licensee or universally available digital markets, not included above, must permittee that the standard discussed programming service. construct DTV facilities by November 1, above is met, but the Bureau may grant 81. Second, a rapid construction 1999. All other commercial stations no more than two extension requests period will promote DTV’s competitive must construct DTV facilities by May 1, upon delegated authority. Subsequent strength internationally, as well as 2002. All noncommercial stations must extension requests will be referred to domestically. Other countries are construct their DTV facilities by May 1, the Commission. moving swiftly to establish their own 2003. We note that 24 stations in the top 78. Our decision to adopt different terrestrial digital television services. For ten markets have voluntarily committed requirements for different categories of example, the United Kingdom is in writing to the Commission to broadcasters is similar to the market- scheduled to begin broadcasting building DTV facilities within 18 staggered approach favored by most terrestrial digital television by 1998 or months. We applaud these broadcasters’ broadcasters and equipment earlier. Japan has recently announced voluntary commitments to give a great manufacturers. We agree that the most that it will move from analog high number of viewers access to a DTV viewed stations in the largest television definition television to digital signal in a very short period. This markets can be expected to lead the television. Neither European nor important step means that a significant transition to DTV and that these stations Japanese digital standards are portion of the public will be able to are better situated to invest the capital compatible with the U.S. standard. In receive multiple signals by the holiday necessary to establish the first DTV the DTV Standard proceeding, shopping season, when nearly 40 stations. We also agree that smaller equipment manufacturers and labor percent of all receivers are sold. We ask market stations will find it easier to unions argued that quick and decisive that those stations that have represented begin DTV service after learning from action was necessary to permit to the Commission that they will have the experience gained by the larger American companies to compete completed construction of the DTV market stations. In addition, we agree internationally. The National facility by November 1, 1998, file that our staggered construction schedule Telecommunications and Information reports at six-month intervals, beginning will help keep costs lower for smaller Administration and the Office of on November 1, 1997, stating that their market stations, as equipment costs Science and Technology Policy argued plans to meet these deadlines are on decrease as the market matures. In that absent quick action, America might schedule or specifying any difficulties addition, a tiered approach allows us to relinquish its technological lead to encountered in attempting to meet these ensure that DTV quickly reaches a large international competitors, while rapid deadlines. percentage of U.S. television households adoption would spur the American 77. We will grant an extension to the while placing requirements on a economy in terms of manufacturing, applicable deadline where a broadcaster relatively small number of stations. trade, technological development, has been unable to complete 79. Our earlier preliminary decision international investment, and job construction due to circumstances that to provide for an across-the-board six- growth. Rapid introduction of digital are either unforeseeable or beyond the year application/construction schedule television in the U.S. will help facilitate licensee’s control if the licensee has is no longer appropriate. We now its adoption abroad. taken all reasonable steps to resolve the believe that a general six-year 82. Third, an aggressive construction problem expeditiously. Such construction schedule would schedule helps to offset possible circumstances include, but are not unnecessarily delay the realization of disincentives that any individual limited to, the inability to construct and our goals of free, universal DTV service broadcaster may have to begin digital and spectrum recovery. A six-year transmissions quickly, as well as the 17 Pursuant to section 1.68(a) of the Commission’s construction schedule for all possible absence of market forces that rules, 47 CFR § 1.68(a), the Commission will grant commercial stations anticipated neither might themselves ensure rapid the application where it finds that ‘‘all the terms, conditions, and obligations set forth in the the rapid development of digital construction. We recognize that an application and permit have been fully met, and technologies nor the ability of individual broadcaster may consider that no cause or circumstance arising or first manufacturers and suppliers to provide implementation of DTV to require it to coming to the knowledge of the Commission since DTV equipment. In light of these invest funds in order to capture viewers the granting of the permit would, in the judgment of the Commission, make the operation of such changes, we now believe that the six- for which it is already receiving station against the public interest.’’ year construction period is too long. advertising revenue. Such a broadcaster Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26979 might prefer to wait until others have 1, 1999, requirement applies to only 40 including fully 30 percent of television converted to digital for a number of of the country’s approximately 1200 households will have access to multiple reasons, including lower equipment commercial television stations, and only streams of digital television. The vast costs. On the other hand, a broadcaster 80 additional stations will be affected by majority of commercial broadcasters may recognize first-mover advantages, the November 1, 1999, deadline. Over will have five years in which to such as being first to market with one thousand commercial stations will construct, and noncommercial stations programs in higher definition or with have until May 1, 2002, to plan for and will have six years in which to construct ancillary data services. Our schedule implement their DTV facilities. their digital facilities. We agree with ensures rapid construction in major Noncommercial stations will have until commenters arguing for a shorter markets. May 1, 2003, to construct. construction schedule, especially for 83. Fourth, a rapid build-out works to 86. We believe that our construction broadcasters in the largest television ensure that recovery of broadcast schedule is reasonable. We note that the markets. As these commenters point spectrum occurs as quickly as possible. most aggressive requirements apply to out, broadcasters have been on notice As we discuss in the Sixth Report and stations that we believe are most able to throughout this proceeding of the Order, at the end of the transition we absorb the costs of conversion and are impending need to convert to DTV. plan to recover 78 MHz of clear otherwise situated to make the With their greater population coverage spectrum in addition to the 60 MHz of transition quickly: stations affiliated and scope of operations, we agree that partially encumbered spectrum we plan with the four major networks in the broadcasters in the largest markets to recover in the near future from largest markets. We base our decision in generally will be better able to afford channels 60–69. We will also recover at this regard on several grounds. First, and support a more rapid construction the end of the transition that spectrum network affiliates consistently garner schedule. within channels 60–69 that is still the highest percentage of audience 88. Moreover, the construction needed for analog and digital television share, and thus are likely to have timetable appears to be consistent with broadcasting during the transition. substantial revenues that may be used to the announced plans of the large 84. By adopting construction fund the conversion. Second, network networks. CBS has received an requirements, we hope to give the affiliates are in a stronger position than experimental authorization from the various industries involved the certainty independent stations because they Commission and plans to transmit a to move forward. Penetration of color obtain programming from their network DTV signal from the Empire State television sets, for example, was limited and may also receive economic, Building in the spring of 1997. ABC until the three major networks began technical, and other support that would plans to have stations experimenting transmitting prime time programming in help with respect to the conversion. with digital transmission in early 1998. color. This provides evidence that Affiliates are consistently the most Fox ordered digital transmitters for its consumers may not purchase great highly watched and generally the most O & O’s fully five years ago from Harris numbers of DTV sets or converters until financially successful, with better Corporation, and plans to have digital multiple stations in their market are ratings and consequent higher transmission between the network and transmitting DTV, and that we therefore advertising revenues. Their greater affiliates in place by third quarter 1998. should adopt construction requirements strength should give them a strong NBC said it would begin broadcasting that ensure that there are multiple position from which to launch their digital signals 18 months after licenses digital television broadcasters operating. digital service. Accordingly, we believe are awarded. NBC already has designed Television manufacturers plan to have that network affiliates in the largest and is building a $55 million dollar the first digital television sets ready for markets will be in the best position to state-of-the-art digital infrastructure at purchase by the public by mid-1998. make a rapid transition to DTV. We its headquarters at 30 Rockefeller Plaza The construction schedule set forth here recognize that in some markets, a that will be commissioned this year. On provides that multiple stations in most network has two affiliates, one of which February 2, 1997, WHD–TV, NBC’s of the top ten markets are operating at is much stronger, with a much larger owned-and-operated model DTV station roughly that time. in Washington, D.C., broadcast ‘‘Meet 85. Our construction schedule will audience share, that the other. We have provided relief to the smaller affiliate in the Press’’ in high resolution, using the facilitate our goal of having at least 40 new DTV standard. NBC has also such cases, by granting a longer facilities affiliated with the four top announced that it intends ‘‘to move as construction deadline. Finally, our networks in the top 10 markets aggressively and expeditiously as is construction schedule also focuses on transmitting DTV by May 1, 1999. technically feasible’’ to enable all of its network affiliates because we believe Within roughly 24 months in each of the owned and operated stations around the that the sale of receivers and thus the top 10 markets, which cover country to transmit DTV and is conversion to DTV will be accelerated approximately 30 percent of U.S. ‘‘encouraging and helping’’ its NBC by the early availability of network television households, viewers will affiliates across the nation in making the programming in DTV.18 have DTV transmissions available from transition to DTV. multiple stations. These signals will 87. Thus, the roughly two-year 89. Our confidence in the willingness come from network affiliates, which are construction requirement that applies to of licensees to move rapidly is also generally the stations with the highest these affiliates will both serve the public supported by a recent survey of ratings in the market. In the top 30 and be nonburdensome to these broadcasters which shows that 28 markets, network-affiliated stations broadcasters. By May 1, 1999, markets percent of respondents plan to convert must construct digital facilities by to DTV within two years and 79 percent 18 We have recognized the value and appeal of November 1, 1999. These markets network programming in a number of previous of respondents plan to convert to DTV include 53 percent of U.S. television decisions. See Channel 41, Inc., 6 FCC Rcd 4109, within five years. In fact, some households. Stations in the second 4111 (1991) (rule waiver granted in order to broadcasters have already completed category will benefit from the success of preserve ABC programming); Herald Publishing Co., arrangements for their digital 6 FCC 2d 631 (1967) (waiver granted in part because the stations in the first category, as word station proposed to bring NBC network transmission facilities. For example, the spreads from the largest markets to programming to a large number of viewers for the network affiliates in San Francisco have those medium-sized markets. The May first time). arranged to place their antennae for 26980 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations digital transmission on Sutro Tower. upgrade of existing towers. As administration simple, assure progress Similarly, in New York City, the CBS- explained above, this burden will be toward spectrum recovery on a timely owned station has already arranged to eased by our limited build-out basis, and give parties a clearly defined place an antenna for digital requirement. In addition, while we planning horizon. The Fourth Further transmission atop the Empire State recognize that there may not be Notice/Third Inquiry (60 FR 42130, Building. sufficient equipment available in the August 15, 1995) explained that a more 90. In addition, two experimental earliest days to allow for a full-fledged rapid conversion to ATV might be digital television stations are already up DTV operation to be implemented by all possible than previously expected. The and running, and were able to begin 1,600 television licensees, we are broadcast industry, including transmissions just four months after confident that minimal facilities for the equipment manufacturers, have been announcing their plans to do so: WHD– handful of licensees in the top ten aggressive in developing digital TV in Washington, DC, the model markets can be assembled in a timely television technology, as have station sponsored by the broadcast and fashion. These facilities need only meet alternative programming providers such equipment industries, and WRAL, in our requirements of serving the as Direct Broadcast Satellite (DBS), Raleigh, North Carolina. We have also community of license, which can be cable systems, wireless technology, and already granted eight requests for accomplished by the use of existing others. Because of the developing experimental facilities, at least five of equipment or prototypes certain to be competition, and the drop in prices which are now operating, and we expect introduced soon. resulting from the proliferation of to grant another five experimental 93. As for noncommercial stations, we digitally based media, the Fourth licenses soon. These efforts reflect the allow them until May 1, 2003, to Further Notice/Third Inquiry ability of broadcasters to set up construct DTV facilities. There is strong anticipated that conversion might occur facilities, and they have given support in the record for giving more rapidly than originally broadcasters experience with digital noncommercial stations greater leeway anticipated. Commenters were asked to television equipment that should help in the construction of DTV facilities. As address whether some objective speed its introduction elsewhere. discussed more fully below, benchmark(s) could be used to Finally, equipment manufacturers’ noncommercial stations need and determine when broadcasters should recent statements that they plan to sell warrant special relief to assist them in cease NTSC transmission. digital television sets by Christmas 1998 the transition. And, as noted above, 95. Comments. Numerous is a further expression of confidence there are some noncommercial stations commenters note that the high degree of and expectation that DTV will be widely at the forefront of DTV. However, we are uncertainty surrounding the successful available by that time so as to ensure convinced by the record that establishment of DTV makes it difficult consumer demand. noncommercial stations, as a group, to set an end-point for NTSC service. 91. While we recognize that may have more difficulty with the Many urge us therefore to postpone conversion to digital will impose some transition to DTV than commercial setting a transition date. Joint burden on broadcasters, we have taken stations. Therefore, we permit Broadcasters argue, for instance, that: steps to ease broadcasters’ introduction noncommercial stations a longer period ‘‘Even the enterprise of setting self- of digital service by requiring them at of time to construct DTV facilities than enforcing benchmarks at this point is the outset only to emit a DTV signal commercial DTV stations. highly speculative in the absence of strong enough to encompass the market experience. There are simply too H. Recovery Date community of license, and not requiring many unknowns that will need to be them to begin transmission to achieve 94. Background. Earlier in this factored into any such decision—the full replication. Many broadcasters will proceeding, the Commission made the cost and availability of digital sets, the be able to use existing towers for digital preliminary decision to establish a cost and availability of converters, and transmission and reduce the costs of recovery date 15 years from the date of ATV penetration levels both in terms of constructing a DTV facility. Many the adoption of an ATV system or the households and sets.’’ Some commenters who argued in favor of a date a final Table of ATV Allotments is commenters propose that the longer construction schedule did so effective, whichever is later. At the end Commission set a nominal target date based on their contention that of this period, all analog broadcast for the cessation of NTSC broadcasts, construction of full-replication facilities would cease, and the spectrum used for with periodic reviews to monitor the would require more than six years due NTSC would be returned to the progress of implementation. Others to hardware supply constraints, Commission. The Commission support a settled ‘‘date certain’’ insufficient personnel resources, or lack emphasized that, given the uncertainties approach. of adequate new tower sites. However, surrounding the conversion process and 96. If the Commission were to set our construction requirement is satisfied the possible changes in the data on objective benchmarks, comments by the emission of a DTV signal strong which we relied, setting the recovery suggest several possible benchmarks: a enough to encompass the community of date at 15 years was necessarily measurement of the total number of sets license, rather than the more difficult preliminary. In order to avoid making a and total number of households capable requirement that broadcasters replicate decision that would be overtaken by of displaying DTV; a measurement of their existing service areas. Therefore, events, the Commission adopted a the number of stations transmitting licensees need not initially construct schedule of periodic reviews to make digital signals and the number of full-replication facilities. We believe whatever adjustments might be households with digital receivers, that the establishment of a construction necessary. The Commission made clear including set-top boxes; a ‘‘sets-sold’’ requirement that is more easily satisfied, that broadcasters who do not convert to methodology so that once DTV sets as well as our staggered approach, will ATV will have to cease broadcasting in reach some percentage, e.g., 70%, of alleviate the difficulties raised by some NTSC at the end of the 15-year current TV households, NTSC commenters. transition period. The Commission transmissions would cease three years 92. One of the most significant issues explained that establishment of a firm later; or when a certain percentage, e.g., in converting to digital broadcasting is date for full transition would be in the 80%, of television households no longer the construction of new towers or the public interest because it would keep rely solely on analog broadcasting. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26981

97. Decision. One of our overarching broadcasters who need new towers, will sufficient funds to support current goals in this proceeding is the rapid be able to lease space on their new operations and the transition to DTV. establishment of successful digital towers to mobile service providers, Toward that end, they assert that they broadcast services that will attract further lowering the costs of converting. have worked with Congress to propose viewers from analog to DTV technology, On the viewers’ side, technological legislation that would replace the so that the analog spectrum can be advances in converter-box technology current system of federal funding for recovered. Accomplishment of this goal will lower the consumer costs of the public television stations with new requires that the NTSC service be shut introduction of digital technology. The sources of funding. In their Comments, down at the end of the transition period dramatic drop anticipated in converter- AAPTS/PBS seek flexibility in the and that spectrum be surrendered to the box prices will permit consumers application and construction period in Commission. Indeed, Congress required inexpensively to continue to use light of the financial constraints faced the Commission to condition the grant existing equipment, thus easing the by noncommercial broadcasters, of a digital license on the Commission’s introduction of digital services. Based including relaxation or elimination of recovery of 6 MHz from each licensee. on our current information, we believe the financial qualifications requirement The Act provides: 2006 is a reasonable target. and establishment of a less demanding 100. As we discuss below, we will construction schedule for ‘‘(c) Recovery of License. —If the Commission grants a license for advanced conduct reviews of the progress of DTV noncommercial stations—requiring only television services to a person that, as of the every two years. This will allow us to that they construct and begin operating date of such issuance, is licensed to operate monitor the progress of DTV and to DTV facilities some time prior to the a television broadcast station or holds a make adjustments to the 2006 target, if ultimate conversion deadline. Finally, permit to construct such a station (or both), necessary. In evaluating the they urge that noncommercial stations the Commission shall, as a condition of such appropriateness of the 2006 target date, that share a channel under their license, require that either the additional key factors for consideration will legislative proposal be afforded license or the original license held by the include viewer acceptance of digital flexibility to convert to full-time DTV licensee be surrendered to the Commission television, penetration of digital for reallocation or reassignment (or both) operation on their NTSC channels at pursuant to Commission regulation.’’ receivers and digital-to-analog converter any time during the transition period set-top boxes, the availability of digital- and that the Commission should adopt The question we face is at what point in to-analog conversion by retransmission a waiver policy under which time the surrender should occur. media such as cable, DBS, and wireless noncommercial stations that operate 98. We continue to believe that it is cable, and generally the number of their own DTV channels would be desirable to identify a target end-date of television households that continue to permitted, on a case-by-case basis to NTSC service. Doing so will lend rely solely on over-the-air analog convert to DTV operation on one of the certainty to the introduction of digital broadcasting. We emphasize, as we have station’s 6 MHz channels and cease by making clear to the public that throughout this proceeding, that at the NTSC operations earlier than the analog television service will indeed designated date, broadcasters who do conversion date. cease on a date certain. A target will not receive extensions must return one 103. MAP also supports relaxing the provide broadcasters and manufacturers of their two channels. construction and transition timetables with a defined planning horizon that and financial qualifications for public I. Noncommercial Stations will help them gauge their business broadcasters. General Instrument notes plans to the introduction of DTV. 101. Background. In the Fourth its general support for government 99. While the Commission has Further Notice/Third Inquiry (60 FR action that would ‘‘mitigate financial previously considered a 15-year end- 42130, August 15, 1995), we noted that problems faced by noncommercial point for NTSC service, we now believe noncommercial licensees would face stations in converting to ATV that broadcasters should be able to unique problems in their transition to technology, and would lead to convert to digital broadcast much more DTV, particularly in the area of funding. conversion as early as possible.’’ rapidly. Specifically, we believe that a Accordingly, we asked for comment on Further, The Digital Grand Alliance target of 2006 for the cessation of analog what relief would be appropriate for agrees with AAPTS/PBS that the service is reasonable. As the Fourth noncommercial broadcasters. We also Commission should modify its approach Further Notice/Third Inquiry (60 FR noted comments by noncommercial as necessary to promote the conversion 42130, August 15, 1995) explained, as broadcasters that the six-year of noncommercial stations to DTV. It digital technology has developed, we application/construction period was does not object to affording less have had reason to expect that DTV may insufficient, but expressed our demanding construction schedules for be adopted more quickly than originally preference to establish a firm transition noncommercial broadcasters as long as anticipated. Competitors in the video schedule, dealing with unique problems they are operating their DTV channel by programming market, such as DBS, on a case-by-case basis, rather than the end of the transition period, and it cable, and wireless cable, have establishing two sets of broadcasters, endorses giving them the option to aggressively pursued the potential of each with its own schedule. Finally, we convert to full-time DTV on their NTSC digital technology. This competitive asked what other relief could be channels at any time during the pressure has lent urgency to the need for afforded to noncommercial broadcasters transition period. broadcasters to convert rapidly. to assist them in the conversion to DTV, 104. Decision. At the outset, we note Furthermore, technological advances such as by mandating that only the our commitment to noncommercial have worked to lower the introductory minimum required broadcast educational television service and our costs to broadcasters; for example, new programming must be recognition of the high quality technology may allow many ‘‘noncommercial,’’ and to minimize programming service noncommercial broadcasters to use existing towers for restrictions on their operations and stations have provided to American digital transmission, thus easing the allow them greater flexibility. viewers over the years. We also expense of converting to digital 102. Comments. AAPTS/PBS state acknowledge the financial difficulties equipment. And, due to the that their biggest concern is the ability faced by noncommercial stations and introduction of other services, of noncommercial stations to raise reiterate our view that noncommercial 26982 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations stations will need and warrant special widespread dissemination of Alliance and most equipment relief measures to assist them in the information from a multiplicity of manufacturers argue that manufacturers transition to DTV. Accordingly, we sources were important governmental will build digital receivers that receive intend to grant such special treatment to interests. The Turner II case did not all DTV formats, including HDTV, along noncommercial broadcasters to afford expressly address the issue of must- with NTSC broadcasts, without any FCC them every opportunity to participate in carry of digital television signals. In requirement. The Digital Grand Alliance the transition to digital television, and order to obtain a full and updated states that it would support a we will deal with them in a lenient record on the applicability of the must- requirement that all DTV receivers manner. As discussed above, we will carry and retransmission consent receive all DTV formats including not require a financial showing of any provisions in the digital context, HDTV, if it were coupled with a broadcaster seeking a construction particularly in light of the Turner II requirement that broadcasters transmit permit to build a DTV station, and, decision, we intend to issue a Notice to minimum amounts of HDTV accordingly, no special treatment will seek additional comments on these programming. be required of noncommercial issues. 110. While most broadcasters and broadcasters in this regard. With respect Motorola favor regulations governing K. All-Channel Receiver Issues to the construction deadline, discussed how DTV signals are displayed on DTV above, we will apply a six-year 107. Background. Traditionally, we receivers, most equipment construction period timetable to have not regulated broadcast receivers manufacturers and other commenters noncommercial stations, the longest except insofar as they incidentally favor a market-driven approach. permitted to any category of DTV radiate energy. However, the All Comments are also mixed on the need applicant. We believe, however, that it Channel Receiver Act authorizes us to for labeling requirements. Joint would be premature to attempt to require that television receivers ‘‘be Broadcasters state that the Commission resolve the issue of what additional capable of adequately receiving all should consider a notice requirement on special treatment, if any, should be frequencies allocated by the NTSC-only sets warning consumers that afforded to noncommercial broadcasters Commission to television broadcasting.’’ NTSC transmissions will end. New at this early date, and we will consider While we require that all TV broadcast World states that the FCC should this issue in our periodic reviews. At receivers be capable of adequately require every NTSC-only set to come the same time, however, we wish to receiving all channels allocated by the with a prominent warning that the set note that public broadcasting service Commission to the television broadcast will not receive broadcasts after a date was the first to establish a digital service, we previously determined in certain without modifications. MAP satellite transmission system and that this proceeding that the All Channel argues that the burdens of labeling are public broadcasting licensees are in the Receiver Act does not mandate the far outweighed by the need to protect forefront of experimenting with digital manufacture of dual-mode (DTV and consumers. Equipment manufacturers television. Public broadcasters have NTSC) receivers. We were concerned maintain that labeling requirements are taken an innovative approach in that such a requirement might burden unnecessary. EIA states that experimenting with the capabilities of consumers, and sought comment on informational programs and consumer digital technology. whether there is any need to require that education are critical components of the manufacturers produce receivers manufacturer-consumer relationship, so J. Must-Carry and Retransmission capable of both NTSC and DTV manufacturers will be certain to educate Consent reception during the transition to DTV. consumers regarding their equipment In the Fourth Further Notice/Third 108. In the Fourth Further Notice of options during the transition to DTV. Inquiry (60 FR 42130, August 15, 1995), Proposed Rule Making (60 FR 42130, On the issue of limiting the sale of we requested comment on questions August 15, 1995), we noted that DTV NTSC receivers, New World and the relating to the issues of what must-carry would have the capability to deliver AAPTS/PBS favor a requirement that all obligations and retransmission consent both HDTV and SDTV and sought televisions sold after some date be provisions should apply to DTV comment on whether permitting the capable of receiving and displaying stations, both during the transition and manufacture and sale of receivers that digital broadcast transmissions. The as a consequence of DTV having receive and display only NTSC, SDTV, Digital Grand Alliance and EIA argue replaced NTSC broadcasting. We or HDTV signals, or some combination, that the Commission should not ban or received comments on these issues from would be consistent with the All limit the sale of NTSC-only receivers. several entities. Subsequent to the Channel Receiver Act and in the public During the transition to digital, and issuance of the Fourth Further Notice/ interest. We also requested comment on perhaps even after, the Digital Grand Third Inquiry, Congress, in the 1996 whether we should regulate how a Alliance contends, there is likely to be Act, gave the Commission some signal should be displayed, the need for a demand for NTSC-only sets driven by direction as to the scope of must-carry, a labeling requirement for television cable services, wireless cable services, indicating that no ancillary or receivers, and limiting the sale of NTSC direct broadcast satellite services, digital supplementary DTV services should receivers. video disc players, and VCRs. have must-carry rights. 109. Comments. Most broadcasters 111. Decision. The digital broadcast 106. On March 31, 1997, the Supreme support a requirement that all DTV transmission standard which we Court upheld the constitutionality of the receivers and set-top converters be able adopted in the Fourth Report and Order must-carry provisions contained in the to receive and display NTSC signals, (62 FR 14006, March 25, 1997) differed Cable Television Consumer Protection and receive all DTV signals included in from the standard we proposed in the and Competition Act of 1992, in Turner the DTV transmission standard and Fifth Further Notice (61 FR 26864, May Broadcasting System, Inc. v. FCC display them in the highest quality 29, 1996). Many of the comments we (‘‘Turner II’’). In upholding the format which the particular set is received in response to the Fifth Further constitutionality of must-carry, the designed to accommodate. Golden Notice assumed that the Commission Court emphasized that preserving the Orange argues that the Commission would adopt a DTV transmission benefits of free, over-the-air broadcast should allow market forces to determine standard that included specific video television and promoting the receiver design. The Digital Grand formats. However, the standard we Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26983 adopted in the Fourth Report and Order even after the conversion to DTV. will see a digital television service that did not specify video formats. We chose Therefore, we decline to limit the sale provides a host of new and beneficial instead to allow video formats to be of NTSC-only display devices. services to the American public, while determined by the market and consumer preserving free universal television L. Review Issues demand. Because of this important service that serves the ‘‘public interest, modification, we believe that some of 115. In the Third Report/Further convenience, and necessity.’’ the arguments made by the commenters Notice (57 FR 53588, November 12, on specific all-channel receiver issues 1992), the Commission set deadlines for IV. Administrative Matters are no longer applicable. the application and construction period, 118. The Commission has submitted 112. We have decided that, at this the simulcast requirements, and the to OMB an emergency request for time, equipment manufacturers should transition end-date. The Commission approval of: (1) an information have maximum latitude to determine also adopted a timetable, with specific collection regarding the cancellation of which video formats DTV equipment years, for the review of information the Initial DTV License and (2) the form will receive. We believe that it is likely relating to these time periods, under the attached to this Report and Order to be that market forces will provide assumption that the ATV standard and used to apply for a DTV construction incentives for broadcasters and a table of ATV allotments would be permit. The first request will be used equipment manufacturers to work adopted by late 1993. The Commission only once and the Commission will not closely together to produce the receiver emphasized that the adoption of certain seek extension of the approval for this and converter designs most valued by dates would give parties a measure of collection. The second will continue to consumers. certainty, while a schedule for review be used by the public. OMB approved 113. We do not believe that our goals would permit government and industry this emergency request and assigned would be advanced by mandating that to adapt, if necessary, to unforeseen 3060–0766 as the control number. all digital receivers receive and display circumstances. Additionally, this Report and Order NTSC signals and DTV signals, 116. While the specific dates contains a requirement that those regardless of format, aspect ratio, or established in the Third Report/Further stations that voluntarily committed to progressive or interlaced scanning, as Notice (57 FR 53588, November 12, building DTV facilities within 18 broadcasters argue. We expect that 1992) have been overtaken by events months are required to submit progress equipment manufacturers will make and are no longer applicable, we reports on construction of facilities. As available to consumers digital receivers continue to believe that regular reviews required by the Regulatory Flexibility that receive both NTSC and DTV of the progress of DTV are highly Act (‘‘RFA’’), 5 U.S.C. 603, an Initial signals. However, we will not preclude desirable. Given the importance of Regulatory Flexibility Analysis equipment manufacturers from digital television’s introduction, we (‘‘IRFA’’) was incorporated in the designing digital receivers that do not conclude that a periodic review every Fourth Further Notice of Proposed Rule receive NTSC signals. In addition, we two years until the cessation of analog Making and Third Notice of Inquiry (60 believe that equipment manufacturers service is necessary to allow the FR 42130, August 15, 1995) in this should be allowed to offer lower-cost, Commission the opportunity to ensure proceeding. The Commission sought digital receivers that receive only that the introduction of digital written public comments on the progressive scan or SDTV formats. Our television and the recovery of spectrum proposals in the Fourth Further Notice, two-year reviews will give us an at the end of the transition fully serves including on the IRFA. The opportunity to monitor DTV receiver the public interest. During these Commission’s Final Regulatory designs and address any problems that reviews, we will address any new issues Flexibility Analysis (‘‘FRFA’’) in this may arise. raised by technological developments, Fifth Report and Order conforms to the 114. We have decided to postpone necessary alterations in our rules, or RFA, as amended by the Contract With any decision concerning a labeling other changes necessitated by America Advancement Act of 1996, requirement. We are providing unforeseen circumstances. The Public Law 104–121, 110 Stat. 847 broadcasters flexibility in their choice of Commission will address such issues as (1996) (‘‘CWAAA’’).19 video formats and equipment the appropriateness of 2006 as a target manufacturers flexibility in their choice recovery date, the proper application of V. Final Paperwork Reduction Act of of receiver designs and we are hopeful the simulcast requirement, the special 1995 Analysis that this will result in products and needs of noncommercial stations, issues 119. This Report and Order contains services that draw consumers to DTV. related to DTV receiver designs and set either a new or modified information At this early stage of the transition labelling, and any other issue that collection. The Commission, as part of process, we will rely on consumer requires examination. Our decisions its continuing effort to reduce electronics manufacturers and retailers today, at the very outset of the paperwork burdens, invites the general to provide the information necessary for introduction of digital television, are in public to comment on the information consumers to make informed choices. some respects necessarily preliminary. collections contained in this R&O as Should problems arise, and consumers A periodic review will permit us to required by the Paperwork Reduction become confused, as the transition make whatever adjustments will be Act of 1995, Public Law 104–13. Public moves forward, we will have required. and agency comments are due 60 days opportunity to revisit labeling III. Conclusion from date of publication of this R&O in requirement issues through our review the Federal Register. Comments should 117. Digital television will enter a process. Finally, we recognize that there address: (a) Whether the new or highly competitive, challenging is an enormous embedded base of video modified collection of information is telecommunications marketplace. Our cassette recorders, cable decoder boxes, necessary for the proper performance of decisions in this Report and Order, laser disc players, and other video the functions of the Commission, equipment that use NTSC receivers for designed to foster technological non-broadcast purposes. This suggests innovation and competition, while 19 See generally 5 U.S.C. § 1 et seq. (RFA). Title that there may be a continuing market minimizing government regulation, will, II of CWAAA is The Small Business Regulatory for the sale of NTSC display devices, we hope, increase the likelihood that we Enforcement Fairness Act of 1996 (SBREFA). 26984 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations including whether the information shall contour overlap’’ rule). This action was added to the engineering portions of the have practical utility; (b) the accuracy of necessary to conform the rules to FCC 340 to collect this information. the Commission’s burden estimates; (c) section 202(a) and 202(b)(1) of the This requirement was approved by OMB ways to enhance the quality, utility, and Telecommunications Act of 1996. This under control number 3060–0714. clarity of the information collected; and action will revise the FCC 301 by 126. The data is used by FCC staff to (d) ways to minimize the burden of the removing the Exhibit dealing with determine whether the applicant meets collection of information on the market and audience share information. basic statutory requirements to become respondents, including the use of 122. The FCC 301 will also be revised a Commission licensee. automated collection techniques or to add the new requirements regarding OMB Approval Number: 3060-None. other forms of information technology. antenna tower registration. This unique Title: DTV Report on Construction OMB Approval Number: 3060–0027. antenna registration number identifies Progress. Title: Application for Construction an antenna structure and must be used Form No.: None. Permit for Commercial Broadcast on all filings related to the antenna Type of Review: New Collection. Station. structure. Several questions will be Respondents: Business or other for- Form No.: FCC 301. added to the engineering portions of the profit. Type of Review: Revision of a this form to collect this information. Number of Respondents: 24. currently approved collection. This requirement was approved by OMB Estimated time per response: 0.33 Respondents: Businesses or other for- under control number 3060–0714. hours (2 times per year). profit. 123. The data is used by FCC staff to Total annual burden: 16 hours. Number of Respondents: 1,996. determine whether the applicant meets Needs and Uses: By letter to the Estimated time per response: 37 basic statutory requirements to become Commission, 24 stations have hours—159 hours (This time varies a Commission licensee. voluntarily committed to building DTV depending of the type of application OMB Approval Number: 3060–0034. facilities within 18 months. The filed. This collection is contracted out to Title: Application for Construction Commission is requesting that these 24 communications attorneys and Permit for Noncommercial Educational stations file reports at six-month consulting engineers for completion of Broadcast Station. intervals, beginning on November 1, the form.) Form No.: FCC 340. 1997, stating that their plans to meet Total annual burden: 8,071. Type of Review: Revision of a Needs and Uses: FCC 301 is used to these deadlines are on schedule or currently approved collection. specifying any difficulties encountered apply for authority to construct a new Respondents: Not for-profit commercial AM, FM or TV broadcast in attempting to meet these deadlines. institutions. 127. The data will be used by FCC station, or to make changes in the Number of Respondents: 646. existing facilities of such a station. In Estimated time per response: 37 staff to monitor the progress of DTV addition, FM licensees or permittees hours—114 hours (This time varies applicants in the construction of their may request, by application on FCC 301, depending of the type of application DTV facilities. upgrades on adjacent and co-channels, filed. This collection is contracted out to VI. Final Regulatory Flexibility modifications to adjacent channels of communications attorneys and Analysis the same class and downgrades to consulting engineers for completion of 128. As required by the Regulatory adjacent channels without first the form.) Flexibility Act (‘‘RFA’’), 5 U.S.C. 603, an submitting a petition for rulemaking. All Total annual burden: 2,736. applicants using this one-step process Needs and Uses: FCC 340 is used to Initial Regulatory Flexibility Analysis must demonstrate that a suitable site apply for authority to construct a new (‘‘IRFA’’) was incorporated in the exists which would comply with noncommercial educational AM, FM Fourth Further Notice of Proposed Rule Making and Third Notice of Inquiry in allotment standards with respect to and TV broadcast station, or to make 20 minimum distance separation and city- changes in the existing facilities of such this proceeding. The Commission grade coverage and that it would be a station. sought written public comments on the suitable for tower construction. 124. To receive authorization for proposals in the Fourth Further Notice, 120. To receive authorization for commencement of operation, an initial including on the IRFA. The commencement of operation, an initial DTV licensee must file FCC 340 for a Commission’s Final Regulatory DTV licensee must file FCC 301 for a construction permit. This application Flexibility Analysis (‘‘FRFA’’) in this construction permit. This application may be filed anytime after receiving the Fifth Report and Order conforms to the may be filed anytime after receiving the initial DTV license but must be filed RFA, as amended by the Contract With initial DTV license but must be filed before the mid-point in a particular America Advancement Act of 1996, before the mid-point in a particular applicant’s required construction Public Law 104–121, 110 Stat. 847 21 applicant’s required construction period. The Commission has developed (1996) (‘‘CWAAA’’). period. The Commission has developed a new section V–D for DTV engineering Need for Objectives of Action a new section V–D for DTV engineering which will be added to the FCC 340. The Fifth Report and Order adopts which will be added to the FCC 301. The Commission will consider these several rules with the following The Commission will consider these applications as minor changes in objectives: (1) To promote and preserve applications as minor changes in facilities. Applicants will not have to free, universally available, local facilities. Applicants will not have to supply full legal or financial broadcast television in a digital world, supply full legal or financial qualification information. thereby preserving free, widely qualification information. 125. This form will be revised to add 121. On 3/7/96, the Commission the new requirements regarding antenna accessible programming that serves the adopted an Order which amended the tower registration. This unique antenna public interest; and (2) to promote Commission’s rules to eliminate current registration number identifies an 20 10 FCC Rcd 10540, 10555 (1995). national multiple radio ownership antenna structure and must be used on 21 See generally 5 U.S.C. 1 et seq. (RFA). Title II restrictions and to relax local radio all filings related to the antenna of CWAAA is The Small Business Regulatory ownership restrictions (the ‘‘radio structure. Several questions will be Enforcement Fairness Act of 1996 (SBREFA). Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26985 spectrum efficiency and rapid recovery alternative definition in the IRFA.22 criterion, and our estimates of small of spectrum. Accordingly, for purposes of this Fifth businesses to which the rules may apply Report and Order, we utilize the SBA’s may be overinclusive to this extent. The Significant Issues Raised by the Public definition in determining the number of SBA’s general size standards are in Response to the Initial Analysis small businesses to which the rules developed taking into account these two No comments were received apply, but we reserve the right to adopt statutory criteria. This does not specifically in response to the IRFA a more suitable definition of ‘‘small preclude us from taking these factors contained in the Fifth Further Notice. business’’ as applied to television into account in making our estimates of However, some comments indirectly broadcast stations and to consider the numbers of small entities. addressed small business issues. In further the issue of the number of small 132. With respect to applying the addition, most commenters agreed that entities that are television broadcasters revenue cap, the SBA has defined DTV licensees should have the in the future. Further, in this FRFA, we ‘‘annual receipts’’ specifically in 13 CFR discretion to provide a wide variety of will identify the different classes of 121.104, and its calculations include an ancillary and supplemental services, small television stations that may be averaging process. We do not currently thereby providing an additional revenue impacted by the rules adopted in this require submission of financial data stream that would benefit small entities. Fifth Report and Order. from licensees that we could use in Finally, several low power television 130. Issues in Applying the Definition applying the SBA’s definition of a small (‘‘LPTV’’) broadcasters, many of which of a ‘‘Small Business’’. As discussed business. Thus, for purposes of are small entities, want the Commission below, we could not precisely apply the estimating the number of small entities to extend initial eligibility to LPTV foregoing definition of ‘‘small business’’ to which the rules apply, we are limited licensees. in developing our estimates of the to considering the revenue data that are number of small entities to which the publicly available, and the revenue data Discription and Number of Small rules will apply. Our estimates reflect on which we rely may not correspond Entities to Which the Rule Will Apply our best judgments based on the data completely with the SBA definition of Definition of a ‘‘Small Business’’. available to us. annual receipts. Under the RFA, small entities may 131. An element of the definition of 133. Under SBA criteria for include small organizations, small ‘‘small business’’ is that the entity not determining annual receipts, if a businesses, and small governmental be dominant in its field of operation. We concern has acquired an affiliate or been jurisdictions. 5 U.S.C. 601(6). The RFA, were unable at this time to define or acquired as an affiliate during the 5 U.S.C. 601(3), generally defines the quantify the criteria that would applicable averaging period for term ‘‘small business’’ as having the establish whether a specific television determining annual receipts, the annual same meaning as the term ‘‘small station is dominant in its field of receipts in determining size status business concern’’ under the Small operation. Accordingly, the following include the receipts of both firms. 13 Business Act, 15 U.S.C. 632. A small estimates of small businesses to which CFR 121.104(d)(1). The SBA defines business concern is one which: (1) Is the new rules will apply do not exclude affiliation in 13 CFR 121.103. In this independently owned and operated; (2) any television station from the context, the SBA’s definition of affiliate is not dominant in its field of operation; definition of a small business on this is analogous to our attribution rules. and (3) satisfies any additional criteria basis and are therefore overinclusive to Generally, under the SBA’s definition, that extent. An additional element of the concerns are affiliates of each other established by the Small Business definition of ‘‘small business’’ is that the when one concern controls or has the Administration (‘‘SBA’’). According to entity must be independently owned power to control the other, or a third the SBA’s regulations, entities engaged and operated. As discussed further party or parties controls or has the in television broadcasting Standard below, we could not fully apply this power to control both. 13 CFR Industrial Classification (‘‘SIC’’) Code 121.103(a)(1). The SBA considers factors 4833—Television Broadcasting Stations, 22 We have pending proceedings seeking such as ownership, management, may have a maximum of $10.5 million comment on the definition of and data relating to previous relationships with or ties to in annual receipts in order to qualify as small businesses. In our Notice of Inquiry (61 FR another concern, and contractual a small business concern. This standard 33066, June 26, 1996) in GN Docket No. 96–113 (In relationships, in determining whether also applies in determining whether an the Matter of section 257 Proceeding to Identify and Eliminate Market Entry Barriers for Small affiliation exists. 13 CFR 121.103(a)(2). entity is a small business for purposes Businesses), FCC 96–216, released May 21, 1996, Instead of making an independent of the RFA. we requested commenters to provide profile data determination of whether television 129. Pursuant to 5 U.S.C. 601(3), the about small telecommunications businesses in particular services, including television, and the stations were affiliated based on SBA’s statutory definition of a small business market entry barriers they encounter, and we also definitions, we relied on the data bases applies ‘‘unless an agency after sought comment as to how to define small available to us to provide us with that consultation with the Office of businesses for purposes of implementing section information. Advocacy of the SBA and after 257 of the Telecommunications Act of 1996, which requires us to identify market entry barriers and to 134. Television Station Estimates opportunity for public comment, prescribe regulations to eliminate those barriers. Based on Census Data. The rules establishes one or more definitions of Additionally, in our Order and Notice of Proposed amended by this Fifth Report and Order such term which are appropriate to the Rule Making (61 FR 09964, March 12, 1996) in MM Docket No. 96–16 (In the Matter of Streamlining will apply to all full service television activities of the agency and publishes Broadcast EEO Rule and Policies, Vacating the EEO stations and may have an effect on TV such definition(s) in the Federal Forfeiture Policy Statement and Amending section translator facilities and LPTV stations. Register.’’ While we tentatively believe 1.80 of the Commission’s Rules to Include EEO The Small Business Administration that the foregoing definition of ‘‘small Forfeiture Guidelines), 11 FCC Rcd 5154 (1996), we invited comment as to whether relief should be defines a television broadcasting station business’’ greatly overstates the number afforded to stations: (1) based on small staff and that has no more than $10.5 million in of television broadcast stations that are what size staff would be considered sufficient for annual receipts as a small business. small businesses and is not suitable for relief, e.g., 10 or fewer full-time employees; (2) Television broadcasting stations consist purposes of determining the impact of based on operation in a small market; or (3) based on operation in a market with a small minority of establishments primarily engaged in the new rules on small television work force. We have not concluded the foregoing broadcasting visual programs by stations, we did not propose an rule makings. television to the public, except cable 26986 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations

and other pay television services.23 do not include or aggregate revenues does not collect financial information of Included in this industry are from non-television affiliated any broadcast facility and the commercial, religious, educational, and companies. We recognize that the Department of Commerce does not other television stations.24 Also proposed rules may also impact collect financial information on these included are establishments primarily minority and women owned stations, broadcast facilities. We will assume for engaged in television broadcasting and some of which may be small entities. In present purposes, however, that most of which produce taped television program 1995, minorities owned and controlled these broadcast facilities, including materials.25 Separate establishments 37 (3.0%) of 1,221 commercial LPTV stations, could be classified as primarily engaged in producing taped television stations in the United small businesses. As we indicated television program materials are States.32 According to the U.S. Bureau of earlier, 77% of television stations are classified under another SIC number.26 the Census, in 1987 women owned and designated as small businesses. Given 135. There were 1,509 television controlled 27 (1.9%) of 1,342 this situation, LPTV and translator stations operating in the nation in commercial and non-commercial stations would not likely have revenues 1992.27 That number has remained fairly television stations in the United that exceed the SBA maximum to be constant as indicated by the States.33 designated as small businesses. approximately 1,551 operating 136. It should also be noted that the 138. Alternative Classification of television broadcasting stations in the foregoing estimates do not distinguish Small Television Stations. An nation as of February 28, 1997.28 For between network-affiliated 34 stations alternative way to classify small 1992 29 the number of television stations and independent stations. As of April, television stations is by the number of that produced less than $10.0 million in 1996, the BIA Publications, Inc., Master employees. The Commission currently revenue was 1,155 establishments, or Access Television Analyzer Database applies a standard based on the number 77% of 1,509 establishments.30 Thus, indicates that about 73 percent of all of employees in administering its Equal the proposed rules will affect commercial television stations were Employment Opportunity (‘‘EEO’’) rule approximately 1,551 television stations; affiliated with the ABC, CBS, NBC, Fox, for broadcasting.37 Thus, radio or approximately 1,194 of those stations UPN, or WB networks. Moreover, seven television stations with fewer than five 31 are considered small businesses. percent of those affiliates have full-time employees are exempted from 35 These estimates may overstate the secondary affiliations. certain EEO reporting and number of small entities since the 137. There are currently 4,977 TV recordkeeping requirements.38 We revenue figures on which they are based translator stations and 1,952 LPTV estimate that the total number of stations which would be affected by the commercial television stations with 4 or 23 Economics and Statistics Administration, new rules, if they decide to convert to fewer employees is 132 and that the Bureau of Census, U.S. Department of Commerce, digital television.36 The Commission 1992 Census of Transportation, Communications total number of noncommercial and Utilities, Establishment and Firm Size, Series 32 educational television stations with 4 or UC92–S–1, Appendix A–9 (1995). Minority Commercial Broadcast Ownership in 39 the United States, U.S. Dep’t of Commerce, National fewer employees is 136. 24 Id. See Executive Office of the President, Office Telecommunications and Information of Management and Budget, Standard Industrial Administration, The Minority Telecommunications 37 Classification Manual (1987), at 283, which The Commission’s definition of a small Development Program (‘‘MTDP’’) (April 1996). describes ‘‘Television Broadcasting Stations (SIC broadcast station for purposes of applying its EEO MTDP considers minority ownership as ownership rule was adopted prior to the requirement of Code 4833) as: of more than 50% of a broadcast corporation’s Establishments primarily engaged in broadcasting approval by the Small Business Administration stock, voting control in a broadcast partnership, or pursuant to section 3(a) of the Small Business Act, visual programs by television to the public, except ownership of a broadcasting property as an cable and other pay television services. Included in 15 U.S.C. 632(a), as amended by section 222 of the individual proprietor. Id. The minority groups Small Business Credit and Business Opportunity this industry are commercial, religious, educational included in this report are Black, Hispanic, Asian, and other television stations. Also included here are Enhancement Act of 1992, Public Law 102–366, and Native American. section 222(b)(1), 106 Stat. 999 (1992), as further establishments primarily engaged in television 33 See Comments of American Women in Radio amended by the Small Business Administration broadcasting and which produce taped television and Television, Inc. in MM Docket No. 94–149 and program materials. Reauthorization and Amendments Act of 1994, MM Docket No. 91–140, at 4 n.4 (filed May 17, Public Law 103–403, section 301, 108 Stat. 4187 25 Economics and Statistics Administration, 1995), citing 1987 Economic Censuses, Women- (1994). However, this definition was adopted after Bureau of Census, U.S. Department of Commerce, Owned Business, WB87–1, U.S. Dep’t of Commerce, public notice and an opportunity for comment. See supra note 250. Bureau of the Census, August 1990 (based on 1987 Report and Order in Docket No. 18244, 23 FCC 2d 26 Census). After the 1987 Census report, the Census Id.; SIC 7812 (Motion Picture and Video Tape 430 (1970). Production); SIC 7922 (Theatrical Producers and Bureau did not provide data by particular 38 See, e.g., 47 CFR 73.3612 (Requirement to file Miscellaneous Theatrical Services (producers of communications services (four-digit Standard annual employment reports on Form 395–B applies live radio and television programs). Industrial Classification (SIC) Code), but rather by to licensees with five or more full-time employees); 27 FCC News Release No. 31327, Jan. 13, 1993; the general two-digit SIC Code for communications (#48). Consequently, since 1987, the U.S. Census First Report and Order in Docket No. 21474 (In the Economics and Statistics Administration, Bureau of Matter of Amendment of Broadcast Equal Census, U.S. Department of Commerce, supra note Bureau has not updated data on ownership of broadcast facilities by women, nor does the FCC Employment Opportunity Rules and FCC Form 250, Appendix A–9. 395), 70 FCC 2d 1466 (1979). The Commission is 28 collect such data. However, we sought comment on FCC News Release No. 7033, March 6, 1997. whether the Annual Ownership Report Form 323 currently considering how to decrease the 29 Census for Communications’ establishments are should be amended to include information on the administrative burdens imposed by the EEO rule on performed every five years ending with a ‘‘2’’ or gender and race of broadcast license owners. small stations while maintaining the effectiveness ‘‘7’’. See Economics and Statistics Administration, Policies and Rules Regarding Minority and Female of our broadcast EEO enforcement. Order and Bureau of Census, U.S. Department of Commerce, Ownership of Mass Media Facilities, Notice of Notice of Proposed Rule Making in MM Docket No. supra note 250, III. Proposed Rulemaking, 10 FCC Rcd 2788, 2797 96–16 (In the Matter of Streamlining Broadcast EEO 30 The amount of $10 million was used to (1995). Rule and Policies, Vacating the EEO Forfeiture estimate the number of small business 34 In this context, ‘‘affiliation’’ refers to any local Policy Statement and Amending Section 1.80 of the establishments because the relevant Census broadcast television station that has a contractual Commission’s Rules to Include EEO Forfeiture categories stopped at $9,999,999 and began at arrangement with a programming network to carry Guidelines), 11 FCC Rcd 5154 (1996). One option $10,000,000. No category for $10.5 million existed. the network’s signal. This definition of affiliated under consideration is whether to define a small Thus, the number is as accurate as it is possible to station includes both stations owned and operated station for purposes of affording such relief as one calculate with the available information. by a network and stations owned by other entities. with ten or fewer full-time employees. Id. at ¶ 21. 31 We use the 77 percent figure of TV stations 35 Secondary affiliations are secondary to the 39 We base this estimate on a compilation of 1995 operating at less than $10 million for 1992 and primary affiliation of the station and generally Broadcast Station Annual Employment Reports apply it to the 1997 total of 1551 TV stations to afford the affiliate additional choice of (FCC Form 395–B), performed by staff of the Equal arrive at 1,194 stations categorized as small programming. Opportunity Employment Branch, Mass Media businesses. 36 FCC News Release No. 7033, March 6, 1997. Bureau, FCC. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26987

Projected Compliance Requirements of included above will have until eligibility for DTV channels to existing the Rule November 1, 1999, to construct their full-power broadcasters, consistent with The Fifth Report and Order adopts a digital facilities. In the third category, the statutory directive to do so number of rules, procedures, and all other commercial stations will have contained in the Telecommunications policies, most of which are not expected until May 1, 2002, to construct their Act of 1996. This minimizes the chances to involve the imposition of new DTV facilities. All noncommercial that small entities that already have full- compliance requirements upon stations will have until May 1, 2003, to service NTSC licenses or construction licensees or other entities. These construct their DTV facilities. We will permits will be forced to surrender include the rules: (1) Providing 6 MHz ask that those stations that have them. However, low power television channels for each DTV channel; (2) represented to the Commission that they broadcasters, many of which are small limiting the initial eligibility for DTV will complete construction of the DTV entities, would not automatically be channels to existing full-power facility by November 1, 1998, file eligible for DTV channels. broadcasters; (3) requiring licensees to reports at six-month intervals, beginning 143. The Fifth Report and Order also provide at least one free digital video on November 1, 1997, stating that their adopts a rule requiring licensees to programming service that is at least plans to meet these deadlines are on provide at least one free digital video comparable in resolution to today’s schedule or specifying any difficulties programming service that is at least service and aired during the same time encountered in attempting to meet these comparable in resolution to today’s deadlines. We will grant an extension of periods that their analog channel is service and aired during the same time time where a broadcaster has been broadcasting; (4) allowing broadcasters periods that their analog channel is unable to complete construction due to full flexibility to respond to the broadcasting. Accordingly, the circumstances that are either demands of their audience by providing provision of this minimum service unforeseeable or beyond the licensee’s ancillary and supplementary services should impose no economic impact control where the licensee has taken all that do not derogate the mandated free, beyond that already imposed by the possible steps to resolve the problem over-the-air program service; (5) giving general requirement that stations expeditiously. construct and operate digital television broadcasters the discretion as to how 140. The second rule with compliance much, if any, high definition television facilities. At the same time, it ensures requirements, that setting a deadline of that viewers will continue to have programming they will transmit; (6) 2006 for broadcasters to complete their refraining from imposing a simulcasting access to over-the-air broadcast transition to DTV by surrendering their programming. Finally, it does not requirement upon broadcasters until the NTSC spectrum, also affects small final years of the transition; (7) licensing impede broadcasters’ opportunities to entities, as well as others. However, generate revenue through additional NTSC and DTV television facilities because stations will have constructed under a single, paired license; (8) stating advertiser-supported programming or their DTV facilities by that time, subscription, if they choose. the Commission’s intent to give special pursuant to the timetable mentioned 144. The Fifth Report and Order also relief to noncommercial broadcasters to above, the compliance requirement is adopts a rule stating that broadcasters assist their transition to DTV, including simply to cease transmitting NTSC shall have full flexibility to respond to providing them six years within which signals. to construct DTV facilities; (9) allowing 141. The third rule with compliance the demands of their audience by equipment manufacturers at this time requirements, that setting a graduated providing ancillary and supplementary maximum latitude to determine which simulcast requirement for the last three services that do not derogate the video formats DTV equipment will years of the transition, also affects small mandated free, over-the-air program receive, since broadcasters will have the entities, as well as others. However, service. Such services could include, latitude to decide which video formats because of the gradual nature of the but are not limited to, subscription they will transmit based on market and requirement, as well as the television programming, computer consumer demand; (10) postponing a multichannel capabilities of DTV, small software distribution, data decision whether to impose labeling entities are not expected to find it transmissions, teletext, interactive requirements on receiver manufacturers; difficult to comply. services, audio signals, and any other and (11) declining to limit the sale of services that do not interfere with the NTSC-only display devices in the Significant Alternatives Considered required free service. future. Minimizing the Economic Impact on 145. The Fifth Report and Order 139. We do expect that three of the Small Entities and Consistent with the declines to impose a requirement that rules we adopt today may constitute Stated Objectives broadcasters provide a minimum significant compliance requirements on The Fifth Report and Order adopts a amount of high definition television small entities, as well as on others. First, rule providing 6 MHz channels for each programming over the DTV spectrum, pursuant to the rule setting a timetable DTV channel. This represents the and instead leaves this decision to the for applying for and constructing DTV optimum balance of broadcast needs discretion of broadcasters. Such a facilities, all licensees will have 90 days and spectrum efficiency, and it is minimum requirement might be after the release date of the DTV Table consistent with the DTV Standard particularly burdensome on small of Allotments to inform the Commission adopted in the Fourth Report and Order. broadcasters, including many if they do not want a DTV channel. To specify a different channel size at independent and foreign-language After that, there will be three categories this late date would not promote the stations. of construction requirements for goals we sought to achieve in adopting 146. The Fifth Report and Order also commercial television stations. In the the DTV Standard and would prolong refrains from imposing a simulcasting first category, all network-affiliated the conversion to DTV, thereby putting requirement on broadcasters until the stations in the top ten television markets broadcasters at a competitive closing years of the transition. However, will have until May 1, 1999, to construct disadvantage to other digital video broadcasters at all times retain the their digital facilities. In the second program providers. option to simulcast, should they so category, all network-affiliated stations 142. The Fifth Report and Order also choose. This discretion assures small in the top 30 television markets not adopts a rule limiting the initial entities, as well as others, the flexibility 26988 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations to compete more efficiently in the video on November 1, 1997, stating that their 152. The Fifth Report and Order also marketplace. plans to meet these deadlines are on concludes that broadcasters should have 147. However, in order to help schedule or specifying any difficulties sufficient time between now and 2006 reclaim spectrum at the end of the encountered in attempting to meet these to complete their transitions to DTV and transition period, the Fifth Report and deadlines. We will grant an extension of surrender their NTSC frequencies. It has Order requires that by the sixth year time where a broadcaster has been become clear that conversion, both for after its adoption, programming that is unable to complete construction due to stations and for viewers, will cost aired on a broadcaster’s analog channel circumstances that are either significantly less than thought at the must be available on its digital channel. unforeseeable or beyond the licensee’s time of the Third Report and Order, This will prevent disenfranchisement of control where the licensee has taken all which had set a 15-year termination the remaining NTSC viewers when the possible steps to resolve the problem date. Thus, conversion can occur more NTSC spectrum is reclaimed. Thus, expeditiously. quickly and NTSC spectrum can be commencing April 1, 2003, DTV 150. An aggressive construction surrendered sooner than earlier licensees and permittees must simulcast schedule is necessary for us to meet our anticipated. In addition, the interests of at least 50% of the video programming main objectives in this proceeding. small entities are served through our transmitted on their analog channel; First, digital broadcast television stands decision to conduct thorough reviews of commencing April 1, 2004, there will be a risk of failing unless it is rolled out the progress of DTV every two years, a 75% simulcasting requirement; quickly. Other media such as DBS, which will allow us to make commencing April 1, 2005, there will be cable, and wireless cable have or soon adjustments to the 2006 target, if a 100% simulcasting requirement until will offer digital programming services. necessary. the analog channel is terminated and Unless digital television broadcasting is 153. The Fifth Report and Order also returned. available quickly, other digital services states the Commission’s intent to give 148. The Fifth Report and Order also may achieve levels of penetration that special relief to noncommercial determines that NTSC and DTV could preclude the success of over-the- broadcasters to assist their transition to television facilities should be licensed air, digital television. Second, a rapid DTV, including providing them with six under a single, paired license. This will construction period is critical to DTV’s years within which to construct their help small broadcasters, as well as competitive strength internationally, as DTV facilities. In so doing, the others, minimize their administrative well as domestically. Third, an Commission is recognizing the unique burdens and the financial costs aggressive construction schedule helps financial difficulties often faced by associated with them. to offset possible disincentives that any these entities, which, as noted earlier, 149. The Fifth Report and Order also individual broadcaster may have to are likely to be small entities. sets a timetable by which stations must begin digital transmissions quickly, as 154. The Fifth Report and Order apply for and construct DTV facilities. well as the absence of many market allows equipment manufacturers at this It is important to foster an expeditious forces that might themselves ensure time maximum latitude to determine and orderly transition to digital rapid construction. Fourth, a rapid which video formats DTV equipment technology that will allow the public to build-out works to ensure that recovery will receive, since broadcasters will receive the benefits of digital television, of broadcast spectrum and its have the latitude to decide which video so it is important that viewers in reallocation to other beneficial uses formats they will transmit based on television markets have access to DTV occurs as quickly as possible. market and consumer demand. We programming and other digital services 151. This construction schedule takes believe that it is likely that market as quickly as possible. First, pursuant to the needs and interests of small entities forces will provide incentives for the rule setting a timetable for applying into account. The most aggressive broadcasters and equipment for and constructing DTV facilities, all requirements apply to stations that we manufacturers to work closely together licensees will have 90 days after the believe will be in the best position to to produce the receiver and converter release date of the DTV Table of make the transition quickly: Network- designs most valued by consumers. The Allotments to inform the Commission if affiliated stations in the top 10 Fifth Report and Order also postpones a they do not want a DTV channel. After television markets. These markets decision regarding labeling that, there will be three categories of include approximately 30 percent of requirements for manufacturers of construction requirements for U.S. television households. Network- receivers. Finally, the Fifth Report and commercial television stations. In the affiliated stations consistently have Order recognizes that there is an first category, all network-affiliated higher ratings, with higher audience enormous embedded base of video stations in the top ten television markets numbers, and we assume with greater cassette recorders, cable decoder boxes, will have until May 1, 1999, to construct financial and other resources, so that the laser disc players, and other video their digital facilities. In the second above construction requirement will equipment that use NTSC receivers for category, all network-affiliated stations both serve the public and be reasonably non-broadcast purposes. Because there in the top 30 television markets not nonburdensome to broadcasters. In may be a continuing market for the sale included above will have until recognition of the fact that some of NTSC display devices, even after the November 1, 1999, to construct their networks may have in some of the larger conversion to DTV, we decline to limit digital facilities. In the third category, markets a second affiliate that is not as the sale of NTSC-only display devices. all other commercial stations will have strong as the other affiliate, we have These decisions allow small entities the until May 1, 2002, to construct their minimized the burden on that weaker maximum ability to determine and meet DTV facilities. All noncommercial affiliate by imposing a longer consumer interests. stations will have until May 1, 2003, to construction deadline. Moreover, we are 155. As noted, at least two of our construct their DTV facilities. We will not requiring licensees initially to decisions may have a significant require that those stations that have construct full-replication facilities. economic impact on a substantial represented to the Commission that they Instead, we are requiring them at the number of small entities. We believe will complete construction of the DTV outset only to emit a DTV signal strong that the additional burdens on small facility by November 1, 1998, file enough to encompass the community of entities cannot be diminished, however, reports at six-month intervals, beginning license. without compromising the two primary Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26989 goals of this proceeding, as described Federal Communications Commission. are analogous to other earlier. William F. Caton, telecommunications services subject to Acting Secretary. regulation by the Commission must VII. Report to Congress comply with the Commission Rule Changes 156. The Commission shall send a regulations that apply to those services, Part 73 of title 47 is amended as copy of this Final Regulatory Flexibility provided, however, that no ancillary or follows: Analysis along with this Fifth Report supplementary service shall have any rights to carriage under sections 614 or and Order in a report to be sent to PART 73ÐRADIO BROADCAST 615 of the Communications Act of 1934, Congress pursuant to the Small Business SERVICES as amended, or be deemed a Regulatory Enforcement Fairness Act of multichannel video programming 1996. See 5 U.S.C. 801(a)(1)(A). A copy 1. The authority citation for part 73 is revised to read as follows: distributor for purposes of section 628 of this FRFA (or a summary thereof) will of the Communications Act of 1934, as Authority: 47 U.S.C. 154, 303, 334, 336. also be published in the Federal amended. Register. 2. Sections 73.624 and 73.625 are (2) In all arrangements entered into 157. For additional information added to Subpart E to read as follows: with outside parties affecting telecommunications service operation, concerning the information collections § 73.624 Digital Television Broadcast contained in this Report and Order Stations. the DTV licensee or permittee must retain control over all material contact Dorothy Conway at 202–418– (a) Digital television (‘‘DTV’’) transmitted in a broadcast mode via the 0217. broadcast stations are assigned channels station’s facilities, with the right to 6 MHz wide. Initial eligibility for Ordering Clauses reject any material that it deems licenses for DTV broadcast stations is inappropriate or undesirable. The limited to persons that, as of April 3, 158. Accordingly, it is ordered That, license or permittee is also responsible 1997, are licensed to operate a full pursuant to sections 4 (i) & (j), 303(r), for all aspects of technical operation power television broadcast station or 307, 309, and 336 of the involving such telecommunications hold a permit to construct such a station Communications Act of 1934 as services. amended, 47 U.S.C. 154 (i), (j) 303(r), (or both). (3) In any application for renewal of (b) At any time that a DTV broadcast 307, 309, and 336, Part 73 of the a broadcast license for a television station permittee or licensee transmits a Commission’s Rules is amended as set station that provides ancillary or video program signal on its analog forth below. supplementary services, a licensee shall television channel, it must also transmit establish that all of its program services 159. It is further ordered That, at least one over-the-air video program on the analog and the DTV spectrum are pursuant to the Contract with America signal at no direct charge to viewers on in the public interest. Any violation of Advancement Act of 1996, the rule the DTV channel that is licensed with the Commission’s rules applicable to amendments set forth below shall be the analog channel. The DTV program ancillary or supplementary services will effective June 16, 1997. Written service provided pursuant to this reflect on the licensee’s qualifications comments by the public on the new paragraph must be at least comparable for renewal of its license. and/or modified information collections in resolution to the analog television (d) Digital television broadcast are due July 15, 1997. station programming transmitted to facilities that comply with the FCC DTV 160. It is further ordered That the new viewers on the analog channel but, Standard (section 73.682(d)), shall be or modified paperwork requirements subject to paragraph (f) of this section, constructed in the following markets by contained in this Report and Order DTV broadcast stations are not required the following dates: (which are subject to approval by the to simulcast the analog programming. (1)(i) May 1, 1999: all network- (c) Provided that DTV broadcast affiliated television stations in the top Office of Management and Budget) will stations comply with paragraph (b) of go into effect upon OMB approval. ten television markets; this section, DTV broadcast stations are (ii) November 1, 1999: all network- 161. It is further ordered That, upon permitted to offer telecommunications affiliated television stations not release of this Fifth Report and Order, services of any nature, consistent with included in category (1)(i) and in the top concurrently released with the Sixth the public interest, convenience, and 30 television markets; Report and Order, this proceeding is necessity, on an ancillary or (iii) May 1, 2002: all remaining hereby terminated. supplementary basis. The kinds of commercial television stations; 162. For additional information services that may be provided include, (iv) May 1, 2003: all noncommercial concerning this proceeding, contact but are not limited to computer software television stations. distribution, data transmissions, Saul Shapiro, Mass Media Bureau, (202) (2) For the purposes of paragraph teletext, interactive materials, aural 418–2600; Mania K. Baghdadi, Mass (d)(1) messages, paging services, audio signals, (i) the term, ‘‘network,’’ is defined to Media Bureau, Policy and Rules subscription video, and any other include the ABC, CBS, NBC, and Fox Division, Legal Branch, (202) 418–2130; services that do not derogate DTV television networks; Dan Bring, Mass Media Bureau, Policy broadcast stations’ obligations under (ii) the term, ‘‘television market,’’ is and Rules Division, Policy Analysis paragraph (b) of this section. Such defined as the Designated Market Area Branch, (202) 418–2170; or Gordon services may be provided on a or DMA as defined by Nielsen Media Godfrey, Mass Media Bureau, Policy broadcast, point-to-point or point-to- Research as of April 3, 1997; and and Rules Division, Engineering Policy multipoint basis, provided, however, (iii) the terms, ‘‘network-affiliated’’ or Branch, (202) 418–2190. that no video broadcast signal provided ‘‘network-affiliate,’’ are defined to include those television stations List of Subjects in 47 CFR Part 73 at no direct charge to viewers shall be considered ancillary or supplementary. affiliated with at least one of the four Television broadcasting. (1) DTV licensees that provide networks designated in paragraph ancillary or supplementary services that (d)(2)(i) as of April 3, 1997. In those 26990 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations

DMAs in which a network has more programming of the analog channel on the chart to the point of intersection than one network affiliate, paragraphs the DTV channel. with the vertical line above the height (d)(1) (i) and (ii) of this section shall (iv) The simulcasting requirements of the antenna above average terrain for apply to its network affiliate with the imposed in paragraphs (f) (i)–(iii) of this the appropriate azimuth located on the largest audience share for the 9 a.m. to section will terminate when the analog scale at the bottom of the chart. If the midnight time period as measured by channel terminates operation and a 6 point of intersection does not fall Nielsen Media Research in its Nielsen MHz channel is returned by the DTV exactly on a distance curve, interpolate Station Index, Viewers in Profile, as of licensee or permittee to the between the distance curves below and February, 1997. Commission. above the intersection point. The (3) Authority delegated. (i) Authority distance values for the curves are is delegated to the Chief, Mass Media § 73.625 DTV coverage of principal located along the right edge of the chart. Bureau to grant an extension of time of community and antenna system. Using the appropriate F (50,10) chart for up to six months beyond the relevant (a) Transmitter location. the DTV station’s channel, locate the construction deadline specified in (1) The DTV transmitter location shall point where the distance coincides with paragraph (d)(1) of this section upon be chosen so that, on the basis of the the vertical line above the height of the demonstration by the DTV licensee or effective radiated power and antenna antenna above average terrain for the permittee that failure to meet that height above average terrain employed, appropriate azimuth located on the construction deadline is due to the following minimum F (50,90) field scale at the bottom of the chart. Follow circumstances that are either strength in dB above one uV/m will be a horizontal line from that point to the unforeseeable or beyond the licensee’s provided over the entire principal left edge of the chart to determine the control where the licensee has taken all community to be served: F (50,10) difference value. Add the reasonable steps to resolve the problem Channels 2–6...... 28 dBu power value in dBk to this difference expeditiously. Channels 7–13...... 36 dBu value to determine the F (50,10) contour (ii) Such circumstances shall include, Channels 14–69...... 41 dBu value in dBu. Subtract the F (50,50) but shall not be limited to: (a) inability (2) The location of the antenna must contour value in dBu from this F (50,10) to construct and place in operation a be so chosen that there is not a major contour value in dBu. Subtract this facility necessary for transmitting digital obstruction in the path over the difference from the F (50,50) contour television, such as a tower, because of principal community to be served. value in dBu to determine the F (50,90) delays in obtaining zoning or FAA (3) For the purposes of this section, contour value in dBu at the pertinent approvals, or similar constraints; or (b) coverage is to be determined in distance along the pertinent radial. the lack of equipment necessary to (2) The effective radiated power to be accordance with paragraph (b) of this obtain a digital television signal. used is that radiated at the vertical angle section. Under actual conditions, the (iii) The Bureau may grant no more corresponding to the depression angle true coverage may vary from these than two extension requests upon between the transmitting antenna center estimates because the terrain over any delegated authority. Subsequent of radiation and the radio horizon as specific path is expected to be different extension requests shall be referred to determined individually for each from the average terrain on which the the Commission. The Bureau may not azimuthal direction concerned. In cases field strength charts were based. on delegated authority deny an where the relative field strength at this Further, the actual extent of service will extension request but must refer depression angle is 90% or more of the usually be less than indicated by these recommended denials to the maximum field strength developed in estimates due to interference from other Commission. the vertical plane containing the stations. Because of these factors, the (iv) Applications for extension of time pertaining radial, the maximum predicted field strength contours give no shall be filed at least 30 days prior to the radiation shall be used. The depression assurance of service to any specific relevant construction deadline, absent a angle is based on the difference in percentage of receiver locations within showing of sufficient reasons for filing elevation of the antenna center of the distances indicated. within less than 30 days of the relevant radiation above the average terrain and (b) Determining coverage. (1) In construction deadline. the radio horizon, assuming a smooth predicting the distance to the field (e) The application for construction spherical earth with a radius of 8,495.5 strength contours, the F (50,50) field permit must be filed on Form 301 kilometers (5,280 miles) and shall be strength charts (Figures 9, 10 and 10b of (except for noncommercial stations, determined by the following equation: which must file on Form 340) on or § 73.699 of this part) and the F (50,10) A = 0.0277 square root of H before the date on which half of the field strength charts (Figures 9a, 10a and 10c of § 73.699 of this part) shall be Where: construction period has elapsed. Thus, A is the depression angle in degrees. for example, for applicants in category used. To use the charts to predict the H is the height in meters of the transmitting (d)(1)(i), the application for construction distance to a given F (50,90) contour, antenna radiation center above average period must be filed by May 1, 1998. the following procedure is used: terrain of the 3.2–16.1 kilometers (2–10 (f)(i) Commencing on April 1, 2003, Convert the effective radiated power in miles) sector of the pertinent radial. DTV television licensees and permittees kilowatts for the appropriate azimuth This formula is empirically derived for the must simulcast 50 percent of the video into decibel value referenced to 1 kW limited purpose specified here. Its use programming of the analog channel on (dBk). Subtract the power value in dBk for any other purpose may be inappropriate. the DTV channel. from the contour value in dBu. Note that (ii) Commencing on April 1, 2004, for power less than 1 kW, the difference (3) Applicants for new DTV stations DTV licensees and permittees must value will be greater than the contour or changes in the facilities of existing simulcast 75% of the video value because the power in dBk is DTV stations must submit to the FCC a programming of the analog channel on negative. Locate the difference value showing as to the location of their the DTV channel. obtained on the vertical scale at the left stations’ or proposed stations’ contour. (iii) Commencing on April 1, 2005, edge of the appropriate F (50,50) chart This showing is to include a map DTV licensees and permittees must for the DTV station’s channel. Follow showing this contour, except where simulcast 100% of the video the horizontal line for that value into applicants have previously submitted Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26991 material to the FCC containing such contour intervals of from 12.2–30.5 maps or Tennessee Valley Authority information and it is found upon careful meters (40–100 feet) and, where the data maps, whichever is the latest, for all examination that the contour locations permits, at least 50 points of elevation areas for which such maps are available. indicated therein would not change, on (generally uniformly spaced) should be If such maps are not published for the any radial, when the locations are used for each radial. In instances of very area in question, the next best determined under this section. In the rugged terrain where the use of contour topographic information should be latter cases, a statement by a qualified intervals of 30.5 meters (100 feet) would used. Topographic data may sometimes engineer to this effect will satisfy this result in several points in a short be obtained from State and Municipal requirement and no contour maps need distance, 61.0–122.0 meter (200–400 agencies. Data from Sectional be submitted. foot) contour intervals may be used for Aeronautical Charts (including bench (4) The antenna height to be used such distances. On the other hand, marks) or railroad depot elevations and with these charts is the height of the where the terrain is uniform or gently highway elevations from road maps may radiation center of the antenna above sloping the smallest contour interval be used where no better information is the average terrain along the radial in indicated on the topographic map (see available. In cases where limited question. In determining the average paragraph (b)(5) of this section) should topographic data is available, use may elevation of the terrain, the elevations be used, although only relatively few be made of an altimeter in a car driven between 3.2–16.1 kilometers (2–10 points may be available. The profile along roads extending generally radially miles) from the antenna site are graphs should indicate the topography from the transmitter site. United States employed. Profile graphs shall be drawn accurately for each radial, and the Geological Survey Topographic for 8 radials beginning at the antenna graphs should be plotted with the Quadrangle Maps may be obtained from site and extending 16.1 kilometers (10 distance in kilometers as the abscissa the United States Geological Survey, miles) therefrom. The radials should be and the elevation in meters above mean Department of the Interior, Washington, drawn for each 45 degrees of azimuth sea level as the ordinate. The profile D.C. 20240. Sectional Aeronautical starting with True North. At least one graphs should indicate the source of the Charts are available from the United radial must include the principal topographical data employed. The graph States Coast and Geodetic Survey, Department of Commerce, Washington, community to be served even though should also show the elevation of the D.C. 20235. In lieu of maps, the average such community may be more than 16.1 center of the radiating system. The terrain elevation may be computer kilometers (10 miles) from the antenna graph may be plotted either on generated, except in the cases of site. However, in the event none of the rectangular coordinate paper or on dispute, using elevations from a 30 evenly spaced radials include the special paper which shows the second point or better topographic data principal community to be served and curvature of the earth. It is not necessary file. The file must be identified and the one or more such radials are drawn in to take the curvature of the earth into data processed for intermediate points addition to the 8 evenly spaced radials, consideration in this procedure, as this along each radial using linear such additional radials shall not be factor is taken care of in the charts interpolation techniques. The height employed in computing the antenna showing signal strengths. The average elevation of the 12.9 kilometer (8 miles) above mean sea level of the antenna site height above average terrain. Where the must be obtained manually using 3.2–16.1 kilometers (2–10 mile) portion distance between 3.2–16.1 kilometers (2–10 miles) from the antenna site appropriate topographic maps. of a radial extends in whole or in part (c) Antenna system. (1) The antenna should then be determined from the over large bodies of water (such as system shall be designed so that the profile graph for each radial. This may ocean areas, gulfs, sounds, bays, large effective radiated power at any angle be obtained by averaging a large number lakes, etc., but not rivers) or extends above the horizontal shall be as low as of equally spaced points, by using a over foreign territory but the contour the state of the art permits, and in the planimeter, or by obtaining the median encompasses land area within the same vertical plane may not exceed the elevation (that exceeded for 50% of the United States beyond the 16.1 effective radiated power in either the distance) in sectors and averaging those kilometers (10 mile) portion of the horizontal direction or below the values. In directions where the terrain is radial, the entire 3.2–16.1 kilometers (2– horizontal, whichever is greater. 10 mile) portion of the radial shall be such that negative antenna heights or (2) An antenna designed or altered to included in the computation of antenna heights below 30.5 meters (100 feet) for produce a noncircular radiation pattern height above average terrain. However, the 3.2 to 16.1 kilometers (2 to 10 mile) in the horizontal plane is considered to where the contour does not so sector are obtained, an assumed height be a directional antenna. Antennas encompass United States land area and of 30.5 meters (100 feet) shall be used purposely installed in such a manner as (1) the entire 3.2–16.1 kilometers (2–10 for the prediction of coverage. However, to result in the mechanical beam tilting mile) portion of the radial extends over where the actual contour distances are of the major vertical radiation lobe are large bodies of water or foreign territory, critical factors, a supplemental showing included in this category. such radial shall be completely omitted of expected coverage must be included (3) Applications proposing the use of from the computation of antenna height together with a description of the directional antenna systems must be above average terrain, and (2) where a method employed in predicting such accompanied by the following: part of the 3.2–16.1 kilometers (2–10 coverage. In special cases, the (i) Complete description of the mile) portion of a radial extends over Commission may require additional proposed antenna system, including the large bodies of water or over foreign information as to terrain and coverage. manufacturer and model number of the territory, only that part of the radial (5) In the preparation of the profile proposed directional antenna. extending from the 3.2 kilometer (2 graph previously described, and in (ii) Relative field horizontal plane mile) sector to the outermost portion of determining the location and height pattern (horizontal polarization only) of land area within the United States above sea level of the antenna site, the the proposed directional antenna. A covered by the radial shall be employed elevation or contour intervals shall be value of 1.0 should be used for the in the computation of antenna height taken from the United States Geological maximum radiation. The plot of the above average terrain. The profile graph Survey Topographic Quadrangle Maps, pattern should be oriented so that 0 for each radial should be plotted by United States Army Corps of Engineers’ degrees corresponds to true North. 26992 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations

Where mechanical beam tilt is intended, antennas; otherwise an informal authority of the Magnuson-Stevens the amount of tilt in degrees of the application will be acceptable. (In case Fishery Conservation and Management antenna vertical axis and the orientation of doubt, an informal application (letter) Act. Fishing by U.S. vessels is governed of the downward tilt with respect to true together with complete engineering data by regulations implementing the FMP at North must be specified, and the should be submitted.) An application subpart H of 50 CFR part 600 and 50 horizontal plane pattern must reflect the may be required for other classes of CFR part 679. use of mechanical beam tilt. stations when the tower is to be used in In accordance with § 679.25(a)(1)(i) (iii) A tabulation of the relative field connection with a DTV station. and (a)(2)(iii), retention of Greenland pattern required in paragraph (c)(3)(ii) (ii) When the proposed DTV antenna turbot by vessels using hook-and-line of this section. The tabulation should is to be mounted on a tower in the gear in the Aleutian Islands subarea of use the same zero degree reference as vicinity of an AM station directional the BSAI was prohibited to prevent the the plotted pattern, and be tabulated at antenna system and it appears that the overfishing of the shortraker/rougheye least every 10 degrees. In addition, operation of the directional antenna rockfish species group. This action was tabulated values of all maxima and system may be affected, an engineering filed for public inspection by the Office minima, with their corresponding study must be filed with the DTV of the Federal Register on May 9, 1997, azimuths, should be submitted. application concerning the effect of the and scheduled for publication in the (iv) Horizontal and vertical plane DTV antenna on the AM directional Federal Register on May 14, 1997. This radiation patterns showing the effective radiation pattern. Field measurements action would produce significant radiated power, in dBk, for each of the AM stations may be required discard of incidental catch of Greenland direction. Sufficient vertical plane prior to and following construction of turbot in the sablefish Individual patterns must be included to indicate the DTV station antenna, and Fishing Quota fishery. In order to clearly the radiation characteristics of readjustments made as necessary. prevent the waste of Greenland turbot the antenna above and below the and prevent the overfishing of horizontal plane. In cases where the [FR Doc. 97–12527 Filed 5–15–97; 8:45 am] shortraker/rougheye rockfish species angles at which the maximum vertical BILLING CODE 6712±01±P group, it is necessary to eliminate the radiation varies with azimuth, a prohibition of retention of Greenland separate vertical radiation pattern must turbot and substitute the closure of the be provided for each pertinent radial DEPARTMENT OF COMMERCE season for directed fishing for that direction. species. (v) All horizontal plane patterns must National Oceanic and Atmospheric The Administrator, Alaska Region, be plotted to the largest scale possible Administration NMFS (Regional Administrator), has on unglazed letter-size polar coordinate determined, in accordance with paper (main engraving approximately 18 50 CFR Part 679 § 679.25(a)(1)(i), (a)(2)(i)(A) and cm×25 cm (7 inches×10 inches)) using [Docket No. 961107312±7021±02; I.D. (a)(2)(iii)(B), that closing the season by only scale divisions and subdivisions of 051297A] prohibiting directed fishing of 1, 2, 2.5. or 5 times 10-nth. All vertical Greenland turbot by vessels using hook- plane patterns must be plotted on Fisheries of the Exclusive Economic and-line gear will prevent overfishing of unglazed letter-size rectangular Zone Off Alaska; Greenland Turbot in the shortraker/rougheye rockfish species coordinate paper. Values of field the Aleutian Islands Subarea group, and is the least restrictive strength on any pattern less than 10 AGENCY: National Marine Fisheries measure to achieve this purpose. percent of the maximum field strength Service (NMFS), National Oceanic and Without this modification, significant plotted on that pattern must be shown Atmospheric Administration (NOAA), discard of incidental catch of Greenland on an enlarged scale. Commerce. turbot would occur by hook-and-line (vi) The horizontal and vertical plane vessels. patterns that are required are the ACTION: Modification of a closure. Therefore, NMFS is terminating the patterns for the complete directional SUMMARY: NMFS issues a modification previous prohibition of retention and is antenna system. In the case of a of a closure from prohibiting retention closing the season for directed fishing composite antenna composed of two or to closing the season for directed fishing for Greenland turbot by vessels using more individual antennas, this means for Greenland turbot in the Aleutian hook-and-line gear in the Aleutian that the patterns for the composite Islands subarea of the Bering Sea and Islands subarea of the BSAI. antenna, not the patterns for each of the Aleutian Islands management area Maximum retainable bycatch amounts individual antennas, must be submitted. (BSAI) by vessels using hook-and-line for applicable gear types may be found (4) Where simultaneous use of gear. This action is necessary to prevent in the regulations at § 679.20(e) and (f). This action responds to the best antennas or antenna structures is significant discard of incidental catch of available information recently obtained proposed, the following provisions shall Greenland turbot. apply: from the fishery. It must be (i) In cases where it is proposed to use DATES: Effective 1200 hrs, Alaska local implemented immediately in order to a tower of an AM broadcast station as time (A.l.t.), May 12, 1997, until 2400 prevent significant discard of incidental a supporting structure for a DTV hrs, A.l.t., December 31, 1997. catch of Greenland turbot in the broadcast antenna, an appropriate FOR FURTHER INFORMATION CONTACT: Aleutian Islands subarea of the BSAI. A application for changes in the radiating Mary Furuness, 907–586-7228. delay in the effective date is system of the AM broadcast station must SUPPLEMENTARY INFORMATION: The impracticable and contrary to the public be filed by the licensee thereof. A formal groundfish fishery in the BSAI exclusive interest. The fleet has not taken the 1997 application (FCC Form 301, or FCC economic zone is managed by NMFS TAC of Greenland turbot in the Aleutian Form 340 for a noncommercial according to the Fishery Management Islands. Further delay would only result educational station) will be required if Plan for the Groundfish Fishery of the in discards which would disrupt the the proposal involves substantial change Bering Sea and Aleutian Islands Area FMP’s objective of providing sufficient in the physical height or radiation (FMP) prepared by the North Pacific Greenland turbot as bycatch to support characteristics of the AM broadcast Fishery Management Council under other anticipated groundfish fisheries. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 26993

NMFS finds for good cause that the implementation of this action can not be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived. Classification This action is required by § 679.25 and is exempt from review under E.O. 12866. Authority: 16 U.S.C. 1801 et seq. Dated: May 12, 1997. Bruce C. Morehead, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 97–12810 Filed 5–12–97; 4:57 pm] BILLING CODE 3510±22±F 26994

Proposed Rules Federal Register Vol. 62, No. 95

Friday, May 16, 1997

This section of the FEDERAL REGISTER Information Center, Room 100, 801 17th dealers as municipal securities contains notices to the public of the proposed Street, NW., Washington, DC, between 9 principals or municipal securities issuance of rules and regulations. The a.m. and 5 p.m. on business days. representatives to provide certain purpose of these notices is to give interested FOR FURTHER INFORMATION CONTACT: background information and conversely, persons an opportunity to participate in the rule making prior to the adoption of the final Carol A. Mesheske, Chief, Special requires the municipal securities dealers rules. Activities Section, (202) 898–6750, to obtain the information from such Division of Supervision; or Karen L. persons. Generally, the information Main, Senior Attorney, (202) 898–8838, required to be disclosed relates to FEDERAL DEPOSIT INSURANCE Legal Division, Federal Deposit employment history and professional CORPORATION Insurance Corporation, Washington, DC background including any disciplinary 20429. sanctions and any claimed bases for 12 CFR Part 343 exemption from MSRB examination SUPPLEMENTARY INFORMATION: RIN 3064±AC04 requirements. Paragraph (b) of MSRB I. Background Rule G–7 provides that a ‘‘completed Insured State Nonmember Banks The FDIC adopted part 343 as a final Form U–4 or similar form prescribed Which are Municipal Securities Dealers rule on August 8, 1977. 42 FR 40891 ** * in the case of a bank dealer, by (August 12, 1977), and it became the appropriate regulatory agency, AGENCY: Federal Deposit Insurance effective on October 31, 1977. 42 FR containing the foregoing information, Corporation (FDIC). 46275 (September 15, 1977). Part 343 shall satisfy the requirements of this ACTION: Proposed rescission of rule. requires insured state nonmember banks paragraph.’’ The FDIC has developed, in and certain of their subsidiaries, conjunction with the OCC and the FRB SUMMARY: As part of the FDIC’s departments and divisions, as specified (collectively, the Banking Agencies), systematic review of its regulations and in section 3(a)(34)(A)(iii) of the Form MSD–4 to satisfy the requirements written policies under section 303(a) of Securities Exchange Act of 1934 (15 of paragraph (b) of the MSRB’s Rule G– the Riegle Community Development and U.S.C. 78a et seq.) (Act), which are 7. Regulatory Improvement Act of 1994 municipal securities dealers, as defined (CDRI), the FDIC is proposing to rescind Under paragraph (c) of MSRB Rule in section 3(a)(30) of the Act, to file with its regulation that requires insured state G–7, a person who is or seeks to be the FDIC information about persons nonmember banks which are municipal associated with a municipal securities who are associated with them as securities dealers to file with the FDIC dealer is required to furnish the dealer municipal securities principals or certain information about those persons with a statement correcting information municipal securities representatives. who are or seek to be associated with The Securities Acts Amendments of furnished under paragraph (b) of MSRB these dealers as municipal securities 1975 (Pub. L. 95–29) amended the Act Rule G–7 to the extent that such principals or municipal securities to provide for the creation of the MSRB information becomes materially representatives. The FDIC has and delegated responsibility to it to inaccurate or incomplete. To maintain determined for a number of reasons, formulate rules regulating the activities the accuracy of the information which is including the fact that much of the same of municipal securities dealers. filed on Form MSD–4, the FDIC requires information is available in the However, the Act distributes authority state nonmember bank municipal Municipal Securities Rulemaking to enforce MSRB rules among the securities dealers to file with the FDIC Board’s (MSRB) regulation G–7, Securities and Exchange Commission copies of statements such dealers ‘‘Information Concerning Associated (SEC), the Office of the Comptroller of receive pursuant to paragraph (c) of Persons’’, and that the FDIC is not the Currency (OCC), the Federal Reserve MSRB Rule G–7 and Form MSD–5s for required by law to issue its own Board (FRB) and the FDIC. As specified municipal securities principals and regulations governing the professional in section 3(a)(34)(A)(iii) of the Act, the municipal securities representatives qualification of these associated FDIC is authorized to enforce whose association with such dealers persons, to propose rescission of the compliance with MSRB rules by an terminates. Form MSD–5 is a regulation because it is unnecessary and insured state nonmember bank, a notification by a municipal securities duplicative. subsidiary or a department or a division dealer that a municipal securities DATES: Comments must be received on thereof, which is a municipal securities principal’s or a municipal securities or before July 15, 1997. dealer (hereinafter referred to as a ‘‘state representative’s association with the ADDRESSES: Written comments are to be nonmember bank municipal securities dealer has terminated and the reasons addressed to the Office of the Executive dealer’’). for such termination. The informational Secretary, Federal Deposit Insurance One of the areas in which the Act requirements discussed above, as set Corporation, 550 17th Street, NW., directs the MSRB to promulgate rules is forth in part 343, track very closely the Washington, DC 20429. Comments may the qualification of persons associated corresponding requirements described be hand-delivered to Room F–402, 1776 with municipal securities dealers as in MSRB Rule G–7, paragraphs (b) and F Street, NW., Washington, DC 20429, municipal securities principals and (c). on business days between 8:30 a.m. and municipal securities representatives as There are also record retention 5 p.m. (FAX number: (202) 898–3838; those positions are defined in MSRB requirements contained in paragraphs internet address: [email protected]). Rule G–3. Paragraph (b) of MSRB Rule (e) and (f) of the MSRB’s Rule G–7. The Comments will be available for G–7 requires persons who are or seek to FDIC has imposed a virtually identical inspection in the FDIC Public be associated with municipal securities requirement on state nonmember bank Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 26995 municipal securities dealers in section nonmember bank municipal securities securities representatives. It was 343.3(d). dealers by persons who are or seek to be expected that disciplinary and Paragraph (g) of the MSRB’s Rule associated with the subject bank qualification data disclosed on Form G–7 requires every bank municipal municipal securities dealers, and MSD–4s, MSRB Rule G–7(c) statements securities dealer to file with the therefore, is proposing to rescind part and Form MSD–5s would be interfaced appropriate regulatory agency for such 343 for the reasons discussed herein. with the securities personnel data bank bank dealer ‘‘such of the information B. MSRB’s Rule G–7 Requires the already maintained by the NASD. prescribed by this rule as such * ** Provision of Much of the Same Although this integration of the two agency * * * shall by rule or regulation Information as Section 343.3 data bases has not yet been realized, the require’’. The FDIC requires that each Banking Agencies’ working group has such state nonmember municipal As described in Section I. again recognized this objective as a securities dealer file Form MSD–4s, the Background, paragraph (b) of the long-term goal and are working to statements described in paragraph (c) of MSRB’s Rule G–7 requires bank achieve this data base integration. One MSRB Rule G–7 and Form MSD–5s with municipal securities dealers to obtain of the first steps is the adoption of the the FDIC for each person associated certain information from persons who NASD’s Form U–4 to replace the Form with the dealer as a municipal securities are or seek to be associated with them MSD–4s and Form MSD–5s which the principal or municipal securities as municipal securities principals or Banking Agencies currently provide to representative. The filing of Form MSD– municipal securities representatives. their respective constituent bank 4s, MSRB Rule G–7(c) statements and The MSRB’s Rule G–7 provides that a municipal securities dealers. This is an Form MSD–5s with the FDIC constitute form prescribed by the appropriate objective that the Banking Agencies’ ‘‘reports’’, ‘‘applications’’ or regulatory agency, containing the working group is continuing to pursue. ‘‘documents’’ within the meaning of information set forth in paragraph (b), Representatives, whether associated section 32(a) of the Act and constitute will satisfy the requirements of that with a securities broker or dealer or a filings with the SEC for purposes of paragraph. The FDIC, in cooperation bank municipal securities dealer, are section 17(c)(1) of the Act. Section with the other Banking Agencies, has subject to the same general MSRB 17(c)(1) of the Act requires every created Form MSD–4s and Form MSD– qualification requirements. Developing municipal securities dealer which files 5s to satisfy the requirements of a more nearly uniform process for all an application, notice, report or paragraph (b) of MSRB Rule G–7. municipal securities associated persons document with the FDIC to file a copy Although the FDIC proposes to rescind would reduce overall regulatory costs by part 343, the Form MSD–4s and MSD– of such application, notice, report or eliminating the use of duplicative forms 5s will continue to be provided to state document with the SEC. for individuals with dual registrations nonmember bank municipal securities The FDIC’s part 343 is identical in all (e.g., for dual employees in bank dealers to satisfy the requirements of the significant respects to the comparable municipal securities dealers and non- MSRB Rule G–7, paragraph (b) by the regulations adopted by the FRB bank municipal securities dealers) and FDIC. The forms have detailed (§ 208.8j) and the OCC (part 10). The by promoting industry-wide instructions and provide guidance Banking Agencies also cooperated in qualification standards. regarding their completion and filing drafting the forms. Part 343 has not been Moreover, the state nonmember bank amended by the FDIC in any significant information. Additionally, the statements mandated in § 343.3 to municipal securities dealers must manner since its adoption in August already be knowledgeable of and 1977. correct information which has been previously submitted on a Form MSD– familiar with the SEC’s, the MSRB’s and II. Basis for Rescission 4 are required by MSRB Rule G–7, the NASD’s rules and regulations in order to comply with the bank A. Implementing Regulations Are Not paragraph (c). Therefore, there is no need to retain this redundant regulatory municipal securities dealer registration Required by the Act requirement. Moreover, a separate requirements (section 15B(a) of the Act) Section 23(a)(1) of the Act states that recordkeeping requirement in § 343.3(d) and other requirements imposed upon the FDIC shall have power ‘‘to make is unnecessary because substantially bank and non-bank participants in the such rules and regulations as may be similar requirements are found in MSRB municipal securities market. The necessary or appropriate to implement Rule G–7, paragraphs (e) and (f). Banking Agencies’ long-term goal is to the provisions of this title for which (it have all participants in the municipal is) responsible’’. (Emphasis supplied.) C. Rescission Promotes the Long-Term securities markets register and file Therefore, although section 15B(b)(2)(A) Goal of Adopting the NASD’s Form U required forms and information with the requires the MSRB to promulgate and Consolidating Data Bases at the NASD; therefore, the FDIC believes that regulations addressing the qualification NASD it is no longer necessary to maintain a of persons who are or seek to be The FDIC announced in the preamble separate regulation which governs a associated with bank municipal to the proposed part 343 when it was small segment of the municipal securities dealers, there is no published in the Federal Register on securities market participants (persons corresponding statutory requirement March 30, 1977 (42 FR 16823) that the who are or seek to be associated with imposed upon the Banking Agencies, Banking Agencies were planning to bank municipal securities dealers) when including the FDIC. The FDIC may forward the Form MSD–4s, the MSRB the informational requirements and exercise its discretion to determine Rule G–7(c) statements and the Form recordkeeping requirements are already whether it is necessary or appropriate to MSD–5s that they would receive to the provided in the MSRB’s Rule G–7. The adopt regulations such as part 343 or, in National Association of Securities state nonmember bank municipal this case, to decide that such a Dealers (NASD) for computer securities dealers are generally familiar regulation is no longer necessary or processing. The NASD has maintained with Rule G–7, and look to the MSRB, appropriate. The FDIC has determined data for many years on personnel in the the NASD and the SEC for the that part 343 is no longer necessary to securities industry similar to the information filing, recordkeeping and ensure that the requisite qualification information disclosed about municipal other regulatory requirements in the information is provided to the state securities principals and municipal municipal securities area. 26996 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules

D. The Number of Covered Entities is examination process. The instructions that state nonmember bank municipal Declining to the forms provide the name and securities dealers file the Form MSD–4s, The FDIC has jurisdiction over the address of the appropriate regulatory the MSRB Rule G–7(c) statements and state nonmember bank municipal agency, and direct the bank municipal the Form MSD–5s with the FDIC. Thus, securities dealers. The FDIC has noted securities dealer to file the requisite comment is sought on whether the a steady decline in the number of state information with the appropriate rescission of this filing requirement nonmember bank municipal securities regulatory agency. It is expected that would create a regulatory gap that dealers over the last several years. As a covered entities will continue to would have harmful effects on banking. result of consolidation in the industry as forward the completed forms and Additionally, some have voiced concern well as the inactivity of some banks statements to the FDIC. that the state nonmember bank municipal securities dealers are previously registered as bank municipal E. Rescission Furthers the Goals of the accustomed to referring to the FDIC’s securities dealers (who are then CDRI Initiative part 343 for guidance in the municipal requested to de-register), the number of The FDIC is conducting a systematic securities area for these informational state nonmember bank municipal review of its regulations and written filing and recordkeeping requirements. securities dealers has declined to policies. Section 303(a) of the CDRI (12 Will the elimination of part 343 actually approximately 28. In the interests of U.S.C. 4803(a)) requires the Banking result in imposing a hardship on the efficiency and reducing duplicative Agencies each to streamline and modify covered entities by deleting a handy regulatory requirements for this small its regulations and written policies in reference source for them? number of covered entities, the FDIC order to improve efficiency, reduce would propose to rescind its part 343 unnecessary costs and eliminate IV. Paperwork Reduction Act and to have the covered bank municipal unwarranted constraints on credit The collection of information securities dealers rely upon the MSRB’s availability. Section 303(a) also requires requirements (embodied in the Form Rule G–7. As discussed hereinabove, the each of the Banking Agencies to remove MSD–4, the MSRB Rule G–7(c) informational requirements and inconsistencies and outmoded and statements and the Form MSD–5) recordkeeping requirements of § 343.3 duplicative requirements from its contained in part 343 have been of the FDIC’s regulations are also found regulations and written policies. As part approved by the Office of Management in the MSRB’s Rule G–7, paragraphs (b), of this review, and in consultation with and Budget pursuant to the Paperwork (c), (e) and (f). the OCC and the FRB, the FDIC has Reduction Act (44 U.S.C. 3501 et seq.). However, the filing requirement determined that part 343 is duplicative The proposed rescission of part 343 found in paragraph (g) of Rule G–7 is of many of the requirements of the would not, however, alter the dependent upon the FDIC’s having a MSRB’s Rule G–7 and that certain requirement under the MSRB’s Rule filing requirement in place. If the efficiencies will be realized by having G–7 that bank municipal securities proposed rescission of part 343 is its state nonmember bank municipal dealers collect the prescribed effected, then the requirement to file the securities dealers rely upon the MSRB’s information from the persons who are or Form MSD–4s, the MSRB Rule G–7(c) Rule G–7 rather than refer to and seek to be associated with them as statements and the Form MSD–5s with comply with part 343. The FDIC’s municipal securities principals or the FDIC, as the ‘‘appropriate regulatory written policies and regulations would municipal securities representatives. agency’’, will no longer exist. The be streamlined by its elimination. corresponding filing requirement in Section 303(a)(2) of the CDRI requires V. Regulatory Flexibility Act section 17(c)(1) of the Act will also be the FDIC ‘‘to work jointly with the other Under section 605(b) of the eliminated. Section 17(c)(1) states that, federal banking agencies to make Regulatory Flexibility Act (RFA) (5 ‘‘(e)very * * * municipal securities uniform all regulations * ** U.S.C. 605(b)), the regulatory flexibility dealer for which the (SEC) is not the implementing common statutory or analysis otherwise required under appropriate regulatory agency shall supervisory policies.’’ The FDIC and the section 603 of the RFA (5 U.S.C. 603) is ** * file with the (SEC) a copy of any FRB both intend to rescind their not required if the head of the agency application, notice, proposal, report, or respective regulations governing the certifies that the rule will not have a document filed with such appropriate qualification requirements of the significant economic impact on a regulatory agency by reason of its being persons who are or seeking to be substantial number of small entities and a * * * municipal securities dealer. The associated with the bank municipal the agency publishes such certification elimination of the filing requirement securities dealers; part 343 and and a statement providing the factual vis-a-vis the FDIC will, therefore, no § 208.8(j), respectively. However, the basis for such certification in the longer trigger the corresponding filing of OCC intends to retain its comparable Federal Register along with the these forms with the SEC. The filing of regulation, part 10, but to add a cross- proposed rule. these forms with the FDIC are for reference to the MSRB’s rules. The FDIC estimates that, currently, informational purposes only, the Therefore, the Banking Agencies have there are 28 state nonmember bank number of covered entities is very small succeeded in moving toward the municipal securities dealers under its and it is expected that in the future objective stated in section 303(a)(2) of jurisdiction, none of which are under these informational filings will be the CDRI as well as accomplishing the $100 million in assets. The proposed provided to the NASD to be added to a overall goal of eliminating duplicative rescission of part 343 would result in master data base. Therefore, the FDIC and unnecessary regulations. the elimination of duplicative and believes that the deletion of this unnecessary informational requirements regulatory requirement will not have III. Request for Public Comment found in the FDIC’s regulation, and adverse consequences. The FDIC is hereby requesting allow the covered entities to refer to the The forms are still required to be comment during a 60-day comment MSRB’s Rule G–7 requirements instead. completed and maintained by the period on all aspects of this proposed The proposed rescission would have the individual state nonmember bank rescission of part 343. As discussed effect of reducing costs and burden for municipal securities dealers and are above, the rescission of part 343 will the state nonmember bank municipal reviewed by the FDIC during the regular eliminate the regulatory requirement securities dealers. Thus, the FDIC Board Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 26997 of Directors (Board) hereby certifies that district court, rather than to request the based on disability. The redesign plan the proposed rescission would not have Appeals Council to review the decision. anticipates that the process for a significant economic impact on a We are proposing to test procedures that determining disability can be substantial number of small entities 1 eliminate the request for Appeals significantly improved by strengthening within the meaning of the RFA. Council review in furtherance of the the steps of the process in which we Therefore, the provisions of the RFA Plan for a New Disability Claim Process make initial determinations and provide regarding an initial and final regulatory that former Commissioner of Social dissatisfied claimants an opportunity for flexibility analysis (Id. at 603 and 604) Security Chater approved in September a hearing before an ALJ, and by do not apply here. 1994. Unless specified, all other eliminating the reconsideration step and regulations relating to the disability the step in which claimants request the List of Subjects in 12 CFR Part 343 determination process and the Appeals Council to review the decisions Banks, banking, Reporting and administrative review process remain of ALJs. recordkeeping requirements, Securities. unchanged. In 20 CFR 404.906 and 416.1406 (60 The Board of Directors of the Federal DATES: To be sure that your comments FR 20023, April 24, 1995), we have Deposit Insurance Corporation hereby are considered, we must receive them established authority to test, singly and proposes to remove part 343 of title 12 no later than June 16, 1997. in combination, several model of the Code of Federal Regulations. ADDRESSES: Comments should be procedures for modifying the disability submitted in writing to the claims process. Under that authority, we PART 343Ð[REMOVED AND Commissioner of Social Security, P.O. are currently testing, in isolation from RESERVED] Box 1585, Baltimore, MD 21235; sent by other possible changes, a modification of the initial determination step in 1. Part 343 is removed and reserved. telefax to (410) 966–2830; sent by E-mail to ‘‘[email protected]’’; or, delivered which a single decisionmaker, rather Dated at Washington, DC this 29th day of to the Division of Regulations and than a team composed of a disability April, 1997. Rulings, Social Security Administration, examiner and a medical consultant, By order of the Board of Directors. 3–B–1 Operations Building, 6401 makes the initial determination of Federal Deposit Insurance Corporation. Security Boulevard, Baltimore, MD disability. In addition, under authority Robert E. Feldman, 21235, between 8:00 a.m. and 4:30 p.m. established in 20 CFR 404.943 and 416.1443 (60 FR 47469, September 13, Deputy Executive Secretary. on regular business days. Comments may be inspected during these same 1995), we are also testing, in another [FR Doc. 97–12807 Filed 5–15–97; 8:45 am] model for evaluating a possible change BILLING CODE 6714±01±P hours by making arrangements with the contact person shown below. in isolation from other changes, use of an adjudication officer as the focal point FOR FURTHER INFORMATION CONTACT: for all prehearing activities in disability Harry J. Short, Legal Assistant, Division SOCIAL SECURITY ADMINISTRATION cases in which a claimant requests a of Regulations and Rulings, Social hearing before an ALJ. 20 CFR Parts 404 and 416 Security Administration, 6401 Security To assess how the above changes and Boulevard, Baltimore, MD 21235, (410) [Regulations No. 4 and 16] other elements of the disability redesign 965–6243 for information about these plan would work together in different RIN 0960±AE58 rules. For information on eligibility or combinations, we initiated an integrated claiming benefits, call our national toll- test on April 7, 1997, that combines Administrative Review Process, free number, 1–800–772–1213. model procedures for major elements of Testing Elimination of the Fourth Step SUPPLEMENTARY INFORMATION: the redesign plan. As presently of Administrative Review in the structured under existing testing Background Disability Claim Process (Request for authority (established in §§ 404.906, Review by the Appeals Council) The Social Security Administration 404.943, 416.1406, and 416.1443 in (SSA) currently uses a four-step process AGENCY: Social Security Administration. combination), this integrated model in deciding claims for Social Security includes, in addition to models for the ACTION: Proposed rules. benefits under title II of the Social single decisionmaker and the SUMMARY: We propose to amend our Security Act (the Act) and for SSI adjudication officer, a model for rules to establish authority to test benefits under title XVI of the Act. procedures to provide a predecision elimination of the final step in the Claimants who are not satisfied with the interview conducted by the single administrative review process used in initial determination on their claims decisionmaker (at which a claimant for determining claims for Social Security may request reconsideration. Claimants benefits based on disability will have an and Supplemental Security Income who are not satisfied with the opportunity to submit further evidence (SSI) benefits based on disability. If reconsidered determination may request and have an interview with the initial these proposed rules are published in a hearing before an ALJ, and claimants decisionmaker if the evidence does not final, the right of appeal for a claimant who are dissatisfied with an ALJ’s support a fully favorable initial who is included in the test procedures decision may request review by the disability determination), and a model and is dissatisfied with the decision of Appeals Council. Claimants who have to test eliminating the reconsideration an administrative law judge (ALJ) would completed these four steps, and who are step in disability claims. In order to increase our ability to be to file a civil action in Federal dissatisfied with the final decision, may request judicial review of the decision assess the effects of possible 1 The definition of ‘‘small business entity’’ derives by filing a civil action in Federal district modifications of the disability claim from the definition of a ‘‘small business concern.’’ court. 20 CFR §§ 404.900 and 416.1400. process in combination, we are Part 121 of the Small Business Administration’s SSA’s Plan for a New Disability Claim proposing in these rules to amend our rules and regulations (13 CFR part 121) provides Process (59 FR 47887, September 19, regulations to authorize testing of an that any national bank or commercial bank, savings association, or credit union with assets of $100 1994) anticipates establishment of a additional modification in our million or less qualifies as a small business redesigned, two-step process for integrated model. We are proposing to concern. deciding Social Security and SSI claims incorporate in this model additional 26998 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules procedures to test elimination of the ALJ decisions that the Council will speedily including a test of the step in that process in which a claimant consider for quality review purposes elimination of that step in our integrated requests the Appeals Council to review under its authority to review cases on its model. The proposed rules have the the hearing decision of an ALJ. own motion. We are not including limited purpose of authorizing test Under the proposed rules, we will procedures to test the enhanced own- procedures in a relatively small number randomly select approximately one half motion functions anticipated for the of cases (projected at approximately of the requests for an ALJ hearing in the Appeals Council in these proposed 1900) to determine how elimination of integrated model for potential inclusion rules. We are not including such the request for review step could affect in the proposed test procedures. The procedures because we wish to judicial workloads and the legal remaining requests for hearing in the concentrate the proposed test on sufficiency of the agency’s final integrated model will be processed producing information concerning the decisions. If we ultimately decide to under our existing regulations effects of eliminating the request for proceed with elimination of this step, concerning the Appeals Council and Appeals Council review on judicial we would publish a Notice of Public judicial review. This will enable us to workloads and the legal sufficiency of Rulemaking setting forth detailed assess other modifications tested in the SSA’s final decisions. In addition, we proposals concerning all the changes integrated model in association with are preparing to propose permanent that would be made in the both the proposed test procedures for rules to regulate existing procedures and administrative review process to eliminating the request for Appeals establish new procedures for referring eliminate the request for review by the Council review step and our existing cases to the Appeals Council for Appeals Council. Therefore, and request for review procedures. possible review under its own-motion because we have previously provided Under the proposed rules, we will authority. Those proposed changes the public with the opportunity to eliminate the request for review step should provide, if adopted in final, comment on all aspects of our basic (which has been established by agency increased information regarding own- disability redesign plan, including the regulations and is not mandated by the motion review by the Council. elimination of the request for review Act) in a case in the integrated model if: We propose to test the effect of step, we are providing a 30-day (1) The case has been randomly selected eliminating the request for review step comment period for these proposed for inclusion in this aspect of the model, on judicial workloads by comparing the rules rather than the 60-day period we and (2) an ALJ issues a decision in the rate at which civil actions are filed by usually provide. We believe that a 30- case that is less than wholly favorable individuals whose claims are processed day comment period is sufficiently long, to the claimant (i.e., unfavorable or only under the current administrative review in this instance, to allow the public a partially favorable to the claimant). steps in the disability claims process— meaningful opportunity to comment on Cases in the integrated model in which i.e., the four step process—to the rate at the proposed rules in accordance with an ALJ issues a wholly favorable which civil actions are filed in cases Executive Order (E.O) 12866. decision, dismisses a request for selected for processing under the hearing, or issues a recommended proposed test procedures. We will also Proposed Regulations decision will not be included in the consider the rate at which civil actions We propose to add new §§ 404.966 proposed procedures. These cases will are filed in cases in the integrated model and 416.1466 to set forth authority to be processed under our existing in which we retain the request for test elimination of the step in the regulations concerning the Appeals Appeals Council review. administrative review process in which Council and judicial review. We propose to assess the effect of claimants for benefits based on In a case to which the proposed rules eliminating the request for review on disability request the Appeals Council apply, the appeal available to the the legal sufficiency of final decisions to review the decision of an ALJ. The claimant from the ALJ’s decision will be by comparing the rates at which, proposed rules specify in §§ 404.966(a) filing an action in Federal district court. following the filing of civil actions in and 416.1466(a) that testing of Requesting review by the Appeals cases included in the integrated model elimination of the request for review Council will be eliminated as an appeal and in a control sample of cases step will be conducted in randomly and as a prerequisite to seeking judicial processed under the current selected cases in which we have tested review. administrative review steps in the a combination of model procedures for Our specific goals in testing disability claims process, we request modifying the disability claim process elimination of the request for review court-remand of a case within the as authorized in §§ 404.906, 404.943, step will be to assess the effects of this period during which the Commissioner 416.1406 and 416.1443, and an ALJ has change, as it functions in conjunction of Social Security may file his answer to issued a decision that is less than with other modifications in the a civil action under § 205(g) of the Act. wholly favorable to the claimant. disability claim process included in the The Appeals Council, working with Under proposed §§ 404.966(b) and integrated model, on: (1) Judicial agency counsel, will evaluate the claims 416.1466(b), which describe the effect of workloads, and (2) the legal sufficiency in the integrated model and in the an ALJ’s decision, the ALJ’s decision of decisions subjected to judicial control sample to identify instances in will be binding unless a party to the review. We consider the effects of the which a court should be requested (as decision files a civil action, the Appeals change in those respects to represent the courts may be under existing Council reviews the decision on its own principal, practical issues bearing on the procedures) to remand a case for further motion under the authority provided in advisability of eliminating the request administrative action. 20 CFR 404.969 and 416.1469, or the for review step in connection with the We believe that, in conjunction with decision is revised by the administrative planned, overall redesign of the other modifications we are testing in the law judge or the Appeals Council under disability claim process. integrated model, elimination of the the rules on reopening final decisions in SSA’s disability redesign plan request for review step could have a 20 CFR 404.987 and 416.1487. Under anticipates that the request for Appeals significant beneficial effect on the these provisions, the appeal available to Council review will be eliminated in disability claims process and on our a party who is dissatisfied with the conjunction with the establishment of ability to adjudicate claims timely and decision of an ALJ will be to seek procedures to increase the number of accurately. We place a high priority on judicial review. As is true of the Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 26999 provisions of proposed §§ 404.966 and 20 CFR Part 416 (3) The decision is revised by the 416.1466 as a whole, the proposed Administrative practice and administrative law judge or the Appeals provisions of §§ 404.966(b) and procedure, Aged, Blind, Disability Council under the procedures explained 416.1466(b) pertain only to those ALJ benefits, Public assistance programs, in § 404.987. decisions that have been identified for Supplemental Security Income (SSI), (c) Notice of the decision of an inclusion in that part of our integrated Reporting and recordkeeping administrative law judge. The notice of model in which the request for review requirements. decision the administrative law judge by the Appeals Council is eliminated. issues in a case processed under this Dated: May 7, 1997. Proposed §§ 404.966(c) and section will advise you and any other John J. Callahan, 416.1466(c) describe the notice an ALJ parties to the decision that you may file will issue to advise a party to a decision Acting Commissioner of Social Security. an action in a Federal district court included in this part of the integrated For the reasons set out in the within 60 days after the date you receive model of the right to file a civil action. preamble, subpart J of part 404 and notice of the decision. Proposed §§ 404.966(d) and 416.1466(d) subpart N of part 416 of chapter III of (d) Extension of time to file action in describe the right a party will have to title 20 of the Code of Federal Federal district court. Any party having request the Appeals Council to grant an Regulations are proposed to be amended a right to file a civil action under this extension of time to file a civil action. as set forth below. section may request that the time for filing an action in Federal district court Electronic Version PART 404ÐFEDERAL OLD-AGE, be extended. The request must be in SURVIVORS AND DISABILITY writing and it must give the reasons The electronic file of this document is INSURANCE (1950± ) available on the Federal Bulletin Board why the action was not filed within the (FBB) at 9:00 a.m. on the date of 20 CFR part 404, Subpart J, is stated time period. The request must be publication in the Federal Register. To amended as follows: filed with the Appeals Council. If you download the file, modem dial (202) 1. The authority citation for subpart J show that you had good cause for 512–1387. The FBB instructions will of part 404 continues to read as follows: missing the deadline, the time period will be extended. To determine whether explain how to download the file and Authority: Secs. 201(j), 205 (a), (b), (d)–(h), the fee. This file is in WordPerfect and good cause exists, we will use the and (j), 221, 225, and 702(a)(5) of the Social standards in § 404.911. will remain on the FBB during the Security Act (42 U.S.C. 401(j), 405 (a), (b), comment period. (d)–(h), and (j), 421, 425, and 902(a)(5)); 31 PART 416ÐSUPPLEMENTAL U.S.C. 3720A; sec. 5, Pub. L. 97–455, 96 Stat. Regulatory Procedures 2500 (42 U.S.C. 405 note); secs. 5, 6 (c)–(e), SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED Executive Order 12866 and 15, Pub. L. 98–460, 98 Stat. 1802 (42 U.S.C. 421 note). 20 CFR Part 416, Subpart N, is We have consulted with the Office of 2. New § 404.966 is added under the amended as follows: Management and Budget (OMB) and undesignated center heading ‘‘APPEALS 1. The authority citation for subpart N determined that these rules do not meet COUNCIL REVIEW’’ to read as follows: the criteria for a significant regulatory continues to read as follows: action under E.O. 12866. Thus, they are § 404.966 Testing elimination of the Authority: Sec. 702(a)(5), 1631, and 1633 not subject to OMB review. request for Appeals Council review. of the Social Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b). Regulatory Flexibility Act (a) Applicability and scope. Notwithstanding any other provision in 2. New § 416.1466 is added under the We certify that these regulations will this part or part 422 of this chapter, we undesignated center heading ‘‘APPEALS not have a significant economic impact are establishing the procedures set out COUNCIL REVIEW’’ to read as follows: on a substantial number of small entities in this section to test elimination of the because these rules affect only request for review by the Appeals § 416.1466 Testing elimination of the request for Appeals Council review. individuals. Therefore, a regulatory Council. These procedures will apply in flexibility analysis as provided in the randomly selected cases in which we (a) Applicability and scope. Regulatory Flexibility Act, as amended, have tested a combination of model Notwithstanding any other provision in is not required. procedures for modifying the disability this part or part 422 of this chapter, we claim process as authorized under are establishing the procedures set out Paperwork Reduction Act §§ 404.906 and 404.943, and an in this section to test elimination of the These regulations impose no new administrative law judge has issued a request for review by the Appeals reporting or recordkeeping requirements decision (not including a recommended Council. These procedures will apply in requiring OMB clearance. decision) that is less than wholly randomly selected cases in which we favorable to you. have tested a combination of model (Catalog of Federal Domestic Assistance (b) Effect of an administrative law procedures for modifying the disability Program Nos. 96.001, Social Security- claim process as authorized under Disability Insurance; 96.006, Supplemental judge’s decision. In a case to which the Security Income) procedures of this section apply, the §§ 416.1406 and 416.1443, and an decision of an administrative law judge administrative law judge has issued a List of Subjects will be binding on all the parties to the decision (not including a recommended 20 CFR Part 404 hearing unless — decision) that is less than wholly (1) You or another party file an action favorable to you. Administrative practice and concerning the decision in Federal (b) Effect of an administrative law procedure, Death benefits, Disability district court; judge’s decision. In a case to which the benefits, Old-age, Survivors and (2) The Appeals Council decides to procedures of this section apply, the Disability Insurance, Reporting and review the decision on its own motion decision of an administrative law judge recordkeeping requirements, Social under the authority provided in will be binding on all the parties to the security. § 404.969; or hearing unless — 27000 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules

(1) You or another party file an action medical articles to the official Signed at Washington, D.C. this 5th day of concerning the decision in Federal rulemaking record and invites May, 1997. district court; comments on those articles. Bernard E. Anderson, (2) The Appeals Council decides to DATES: Comments must be received on Assistant Secretary for Employment review the decision on its own motion or before August 21, 1997. Standards. under the authority provided in [FR Doc. 97–12324 Filed 5–15–97; 8:45 am] ADDRESSES: Send written comments on § 416.1469; or BILLING CODE 4510±27±M the proposed rule to James L. DeMarce, (3) The decision is revised by the Director, Division of Coal Mine administrative law judge or the Appeals Worker’s Compensation, Room C–3520, Council under the procedures explained Frances Perkins Building, 200 DEPARTMENT OF THE INTERIOR in § 416.1487. Constitution Ave., NW., Washington, (c) Notice of the decision of an Bureau of Indian Affairs DC 20210. administrative law judge. The notice of decision the administrative law judge FOR FURTHER INFORMATION CONTACT: 25 CFR Part 181 issues in a case processed under this James L. DeMarce, (202) 219–6692. RIN 1076±AD82 section will advise you and any other SUPPLEMENTARY INFORMATION: In the parties to the decision that you may file Federal Register of January 22, 1997 (62 Indian Highway Safety Program an action in a Federal district court FR 3338–3435), the Department of Labor Competitive Grant Selection Criteria within 60 days after the date you receive published a proposed rule intended to AGENCY: Bureau of Indian Affairs, notice of the decision. amend and revise the regulations Interior. (d) Extension of time to file action in implementing the Black Lung Benefit Federal district court. Any party having Act, subchapter IV of the Federal Coal ACTION: Proposed rule. a right to file a civil action under this Mine Health and Safety Act of 1969, as SUMMARY: The Bureau of Indian Affairs section may request that the time for amended. Interested persons were (BIA) intends to make funds available to filing an action in Federal district court requested to submit comments on or federally recognized tribes on an annual be extended. The request must be in before March 24, 1997. In the Federal basis for financing tribal highway safety writing and it must give the reasons Register of February 24, 1997 (62 FR projects designed to reduce the why the action was not filed within the 8201), the Department extended the incidence of traffic accidents within stated time period. The request must be comment period through May 23, 1997. Indian country. Due to the limited filed with the Appeals Council. If you The trade association representing coal funding available for the Indian show that you had good cause for mine operators has requested that the Highway Safety Program, the BIA will missing the deadline, the time period Department once again extend the review and select from proposed tribal will be extended. To determine whether comment period. The trade association projects on a competitive basis. The good cause exists, we will use the seeks additional time to analyze existing proposed rule presents the selection standards in § 416.1411. medical evidence and submit its criteria. analysis to peer review. The Department [FR Doc. 97–12938 Filed 5–15–97; 8:45 am] DATES: Comments must be postmarked deems it desirable to extend the BILLING CODE 4190±29±P by July 15, 1997. comment period for all interested persons. Therefore, the comment period ADDRESSES: Comments should be sent to for the proposed rule, amending and Program Administrator, Indian Highway DEPARTMENT OF LABOR revising 20 CFR Parts 718, 722, 725, 726 Safety Program, 505 Marquette Avenue, NW, Suite 1705, Albuquerque, NM Employment Standards Administration and 727, is extended through August 21, 1997. 87102. 20 CFR Parts 718, 722, 725, 726 and In addition, following publication of FOR FURTHER INFORMATION CONTACT: Mr. 727 the proposed rule, the Department Charles Jaynes, Chief, BIA Division of learned of three medical articles Safety Management, (505) 248–5060. [RIN 1215±AA99] relevant to its proposed revision of the SUPPLEMENTARY INFORMATION: This Regulations implementing the Federal definition of the term proposed rule sets forth the procedures Coal Mine Health and Safety Act of ‘‘pneumoconiosis’’ at 20 CFR 718.201. that will govern the BIA’s selection of 1969, as Amended; Extension of See 62 FR 3343–44 (discussion), 3376 recipients of the Indian Highway Safety Comment Period; Additions to the (definition). Those articles are: Program grant. The BIA mails grant Record Becklake, M., ‘‘Occupational Exposures: applications for a given fiscal year to all Evidence for a Causal Association with tribal leaders by the end of February of AGENCY: Employment Standards Chronic Obstructive Pulmonary the preceding fiscal year. Applicants Administration, Labor. Disease,’’ American Review of must submit completed applications by ACTION: Proposed rule; extension of Respiratory Disease, 140: S85–S91, the close of business on June 1. The BIA comment period; additions to the 1989; ‘‘Coal Dust and Compensation,’’ will review and evaluate each complete record. The Lancet, Vol. 335, No. 8685, pp. and timely filed application. BIA seeks 322–324 (Feb. 10, 1990); and Wright, J. to fund as many programs as possible SUMMARY: This document extends the et al., ‘‘State of the Art: Diseases of the and to the level practicable within the period for filing comments regarding the Small Airways,’’ American Review of confines of a limited program budget. proposed rule to amend and revise the Respiratory Diseases, 146: 240–262, The scarce amount of resources often regulations implementing the Black 1992. The Department gives notice of its forces the BIA to limit funding to select Lung Benefits Act. This action is taken inclusion of these articles in the official portions of a proposed tribal project. to permit additional comment from rule-making record, and invites We are publishing this proposed rule interested persons. In addition, this comments on them. Copies of the by the authority delegated by the document informs all interested persons articles may be reviewed at the Secretary of the Interior to the Assistant that the Department is adding three Department of Labor. Secretary—Indian Affairs by 209 DM 8. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27001

Our policy is to give the public an For the reasons set forth in the program, the Bureau of Indian Affairs opportunity to participate in the preamble, Part 181 is proposed to be (BIA) is unable to award grants to all rulemaking process. Interested persons added to 25 CFR subchapter H as applicants. Furthermore, some grant may submit written comments to the follows: recipients may only be awarded a grant location identified in the ADDRESSES to fund certain aspects of their proposed section of the preamble. We will PART 181ÐINDIAN HIGHWAY SAFETY tribal projects. consider all comments timely filed PROGRAM § 181.04 How do I obtain an application? during the public comment period, Sec. BIA mails grant application packages make any necessary revisions and issue 181.01 Purpose. the final rule. for a given fiscal year to all federally 181.02 Definitions. recognized tribes by the end of February We certified to the Office of 181.03 Am I eligible to receive a program of the preceding fiscal year. Additional Management and Budget (OMB) that grant? application packages are available from this proposed rule meets the applicable 181.04 How do I obtain an application? the Program Administrator, Indian standards provided in sections 3(a) and 181.05 How are applications ranked? 181.06 How are applicants informed of the Highway Safety Program, P.O. Box 2003, 3(b)(2) of Executive Order 12988. This results? Albuquerque, New Mexico 87103. Each proposed rule is not a significant rule 181.07 Appeals. application package contains the under Executive Order 12866 and does Authority: 23 U.S.C. 402; 25 U.S.C. 13. necessary information concerning the not require approval by the OMB. This application process, including format, proposed rule does not constitute a § 181.01 Purpose. content, and filing requirements. major Federal action significantly This part will assist the BIA Indian affecting the human environment and, Highway Safety Program Administrator § 181.05 How are applications ranked? therefore, no detailed statement is to disperse funds DOT/NHTSA has BIA ranks each timely filed needed under the National made available. The funds assist application by assigning points based Environmental Policy Act of 1969. selected tribes with their proposed upon four factors. Furthermore, this proposed rule does Highway Safety Projects. These projects (a) Factor No. 1—Magnitude of the not have significant takings implications are designed to reduce traffic crashes, problem (Up to 50 points available). In in accordance with Executive Order reduce impaired driving crashes, awarding points under this factor, BIA 12630, does not have significant increase occupant protection education, will take into account the following: Federalism effects, and does not have a provide Emergency Medical Service (1) Whether a highway safety problem significant economic impact of a training, and increase police traffic exists. substantial number of small entities services. (2) Whether the problem is under the Regulatory Flexibility Act (5 significant. U.S.C. 601 et seq.). § 181.02 Definitions. (3) Whether the proposed tribal Appeal means a written request for project will contribute to resolution of Unfunded Mandates Act of 1996 review of an action or the inaction of an the identified highway safety problem. This proposed rule imposes no official of the BIA that is claimed to (4) The number of traffic accidents unfunded mandates on any adversely affect the interested party occurring within the applicant’s governmental or private entity and is in making the request. jurisdiction over the previous 3 years. compliance with the provisions of the Applicant means an individual or (5) The number of alcohol-related Unfunded Mandates Act of 1995. persons on whose behalf an application traffic accidents occurring within the for assistance and/or services has been applicant’s jurisdiction over the Paperwork Reduction Act of 1995 made under this part. previous 3 years. Under 23 U.S.C. 402, the Department Application means the process (6) The number of reported traffic of Transportation (DOT) funds both the through which a request is made for fatalities occurring within the DOT State Highway Safety Program and assistance or services. applicant’s jurisdiction over the the BIA Indian Highway Safety Program. Grant means a written agreement previous 3 years. The information contained in each grant between the BIA and the governing (7) The number of reported alcohol- application under both programs is body of an Indian tribe or Indian related traffic fatalities occurring within identical. The Indian Highway Safety organization wherein the BIA provides the applicant’s jurisdiction over the Program competitive grant application funds to the grantee to plan, conduct, or previous 3 years. (b) Factor No. 2—Countermeasure solicits only the information DOT administer specific programs, services, selection (Up to 40 points available). In requires for its State Highway Safety or activities and where the awarding points under this factor, BIA Program and uses it for substantially the administrative and programmatic will take into account the following: same purpose of awarding Highway provisions are specifically delineated. Grantee means the tribal governing (1) Whether the countermeasures Safety Program funds to applicants. selected are the most effective for the OMB has reviewed and approved the body of an Indian tribe or Board of Directors of an Indian organization identified highway safety problem. information collection requirements for (2) Whether the countermeasures the DOT State Highway Safety Program. responsible for grant administration. Recipient means an individual or selected are cost effective. See OMB Control Number 2127–0003. persons who have been determined as (3) Whether the applicant’s objectives No additional OMB authorization is eligible and are receiving financial are realistic and attainable. needed. assistance or services under this part. (4) Whether the applicant’s objectives The primary author of this document are time framed and, if so, whether the is Lawrence Archambeau, Bureau of § 181.03 Am I eligible to receive a program time frames are realistic and attainable. Indian Affairs. grant? (c) Factor No. 3—Tribal leadership The Indian Highway Safety Program and community support (Up to 10 List of Subjects in 25 CFR Part 181 grant is available to any federally points available). In awarding points Indians, Highways and roads, recognized tribe. Because of the limited under this factor, BIA will take into Highway safety. financial resources available for the account the following: 27002 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules

(1) Whether the applicant proposes comments to Rm. 1132, CM #2, 1921 Nonetheless, EPA will extend the using tribal resources in the project. Jefferson Davis Highway, Arlington, VA. comment period for an additional 7 (2) Whether the appropriate tribal Comments and data may also be days. Comments will now be due on or governing body supports the proposal submitted electronically by following before May 26, 1997. plan, as evidenced by a tribal resolution the instructions under Unit II. of this II. Public Docket or otherwise. document. No Confidential Business (3) Whether the community supports Information (CBI) should be submitted The official record for the proposed the proposal plan, as evidenced by through e-mail. rule, as well as the public version, has letters or otherwise. FOR FURTHER INFORMATION CONTACT: By been established for the proposal under (d) Factor No. 4—Past performance (+ mail: Jim Tompkins, Product Manager docket control number ‘‘OPP–300486’’ or ¥10 points available). In awarding (PM) 25, Registration Division (7505C), (including comments and data points under this factor, BIA will take Office of Pesticide Programs, submitted electronically as described into account the following: Environmental Protection Agency, 401 below). A public version of this record, (1) Financial and programmatic M St., SW., Washington, DC 20460. including printed, paper versions of reporting requirements. Office location, telephone number, and electronic comments, which does not (2) Project accomplishments. e-mail address: Rm. 241, CM #2, 1921 include any information claimed as CBI, is available for inspection from 8:30 § 181.06 How are applicants informed of Jefferson Davis Hwy., Arlington, VA, the results? (703) 305–5697; e-mail: a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The official BIA will send a letter to all applicants [email protected]. record is located at the address in notifying them of their selection or non- SUPPLEMENTARY INFORMATION: ‘‘ADDRESSES’’ at the beginning of this selection for participation in the Indian I. Background document. Highway Safety Program for the Electronic comments can be sent upcoming fiscal year. BIA will explain In the Federal Register of May 2, 1997 (62 FR 24065) (FRL–5617–5), EPA directly to EPA at: to each applicant not selected for [email protected] participation the reason(s) for non- issued a Notice of Proposed Rulemaking selection. for establishment of tolerances for Electronic comments must be residues of the herbicide bromoxynil submitted as an ASCII file avoiding the § 181.07 Appeals. and its metabolite DBHA on cotton use of special characters and any form You may appeal actions taken by BIA commodities; for establishment of of encryption. Comments and data will officials under this part by following the tolerances for residues of bromoxynil on also be accepted on disks in procedures in 25 CFR part 2. poultry commodities (including eggs); Wordperfect 5.1 file format or ASCII file Dated: May 6, 1997. and for revision of tolerances for format. All comments and data in Ada E. Deer, residues of bromoxynil on other meat electronic form must be identified by commodities and milk. Written the docket control number OPP–300486. Assistant Secretary—Indian Affairs. comments on the proposed rule were to Electronic comments on the proposed [FR Doc. 97–12935 Filed 5–15–97; 8:45 am] be received on or before May 19, 1997. rule may be filed online at many Federal BILLING CODE 4310±02±P On May 6, 1997, the Union of Depository Libraries. Concerned Scientists and the List of Subjects in 40 CFR Part 180 Environmental Defense Fund requested ENVIRONMENTAL PROTECTION that EPA extend this comment period Environmental protection, AGENCY from 17 to 60 days. Administrative practice and procedure, Under section 408(e) of the FFDCA, Agricultural commodities, Food 40 CFR Part 180 EPA is required to provide a 60–day additive, Pesticides and pests, Reporting [OPP±300486A; FRL±5719±2] comment period on proposed rules and recordkeeping requirements. Dated: May 12, 1997. RIN AC18 unless EPA finds for good cause that it would be in the public interest to James Jones, Bromoxynil; Pesticide Tolerances; provide a shorter period. EPA shortened Acting Director, Registration Division, Office Extension of Comment Period the comment period on the bromoxynil of Pesticide Programs. tolerances to 17 days based on the fact [FR Doc. 97–13047 Filed 5-15-97; 8:45 am] AGENCY: Environmental Protection that previous notice had been provided BILLING CODE 6560±50±F Agency (EPA). on the central issue of establishing a ACTION: Extension of comment period. tolerance permitting use of bromoxynil on cotton, and cotton growers faced a DEPARTMENT OF TRANSPORTATION SUMMARY: Notice is hereby given that potential hardship if a decision is not the period for filing public comment on made expeditiously. Surface Transportation Board the proposed tolerances for bromoxynil In their request for an extension of the and its metabolite DBHA on cotton comment period, the Union of 49 CFR Part 1039 commodities, and for bromoxynil on Concerned Scientists and the animal commodities is extended. Environmental Defense Fund cited a [Ex Parte No. 346 (Sub±No. 36)] DATES: Public comments must be number of health issues and questions received on or before May 26, 1997. regarding interpretation of the FFDCA Rail General Exemption AuthorityÐ ADDRESSES: By mail, submit written safety standard. EPA does not believe Exemption of Nonferrous Recyclables comments to: Public Information and these groups have shown that it is not and Railroad Rates on Recyclable Records Integrity Branch, Information in the public interest to shorten the Commodities and Resources Division (7506C), Office comment period. EPA also does not AGENCY: Surface Transportation Board, of Pesticide Programs, Environmental think that the groups have demonstrated Transportation. Protection Agency, 401 M St., SW., that the comment period is inadequate ACTION: Proposed rule, withdrawal. Washington, DC 20460. In person, bring to address the issues they have raised. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27003

SUMMARY: The Surface Transportation ACTION: Notice of proposed rulemaking. Initial Regulatory Flexibility Analysis Board is discontinuing the rulemaking in Ex Parte No. 346 (Sub-No. 36). SUMMARY: The Interstate Commerce Pursuant to 5 U.S.C. 605(b), the Board DATES: This withdrawal is made on May Commission (ICC) issued a notice of preliminarily concludes that an 5, 1997. proposed rulemaking (NPR) in Ex Parte exemption would not have a significant FOR FURTHER INFORMATION CONTACT: No. 346 (Sub-No. 36) on August 23, economic impact on a substantial Beryl Gordon, (202) 565–1600. [TDD for 1994, published in the Federal Register number of small entities. No new the hearing impaired: (202) 565–1695.] on August 24, 1994, to consider whether regulatory requirements would be SUPPLEMENTARY INFORMATION: In a notice to exempt partially from regulation the imposed, directly or indirectly, on such of proposed rulemaking (NPR) in this rail transportation of certain nonferrous entities. The impact, if any, would be to proceeding served on August 23, 1994, recyclables. The ICC Termination Act of reduce the amount of paperwork and and published in the Federal Register 1995 significantly changed the basis for regulation. If an exemption were on August 24, 1994 (59 FR 43529), the that notice. Consequently, we are granted, it would be based partly on a Interstate Commerce Commission (ICC) issuing a new NPR proposing a total finding that regulation of this solicited comments on a proposal to exemption from regulation for 29 transportation is not necessary to exempt partially from regulation the rail nonferrous recyclable commodities. We protect shippers (including small transportation of 28 nonferrous are also announcing a policy for the shippers) from abuse of market power. recyclable commodities. After the interim to govern the 11 nonferrous See 49 U.S.C. 10502. Such a finding, if issuance of the NPR, the ICC recyclable commodities that were made, would indicate that a substantial previously partially exempted. Finally, Termination Act of 1995 (ICCTA), Pub. number of small entities would not be in a separate decision served today, Ex L. No. 104–88, 109 Stat. 803 was significantly affected. We invite Parte No. 346 (Sub-No. 36) is being enacted. The ICCTA significantly comments in this area. changed the basis for the NPR by discontinued. eliminating former 49 U.S.C. 10731(e). DATES: Persons interested in List of Subjects in 49 CFR Part 1039 Consequently, in Rail General participating in this proceeding as a Agricultural commodities, Intermodal Exemption Authority—Nonferrous party of record by filing and receiving transportation, Manufactured Recyclables, STB Ex Parte No. 561 written comments must file a notice of commodities, Railroads. (published elsewhere in this section of intent to participate by May 26, 1997. the Federal Register), we are issuing a We will issue a service list of the parties Decided: April 24, 1997. new NPR proposing a total exemption of record shortly thereafter. Comments By the Board, Chairman Morgan and Vice from regulation for 29 nonferrous and replies must be served on all parties Chairman Owen. recyclable commodities. Because we of record. Comments are due on June 30, Vernon A. Williams, will consider a broader exemption in 1997 and replies are due on July 15, Secretary. STB Ex Parte No. 561, we are 1997. discontinuing this proceeding. The For the reasons set forth in the ADDRESSES: Send an original plus 10 comments previously filed in response preamble, title 49, chapter X, Part 1039 to the NPR will be made part of the copies of notices of intent to participate and pleadings referring to STB Ex Parte of the Code of Federal Regulations is record in STB Ex Parte No. 561 and proposed to be amended as follows: need not be refiled. No. 561 to: Surface Transportation Board, Office of the Secretary, Case Decided: April 24, 1997. PART 1039ÐEXEMPTIONS Control Unit, 1925 K Street, N.W., By the Board, Chairman Morgan and Vice Washington, DC 20423–0001. Chairman Owen. 1. The authority citation for Part 1039 Vernon A. Williams, FOR FURTHER INFORMATION CONTACT: continues to read as follows: Beryl Gordon, (202) 565–1600. [TDD for Secretary. Authority: 5 U.S.C. 553; and 49 U.S.C. the hearing impaired: (202) 565–1695.] [FR Doc. 97–12949 Filed 5–15–97; 8:45 am] 10502 and 13301. BILLING CODE 4915±00±P SUPPLEMENTARY INFORMATION: The Board’s decision proposing these 2. In § 1039.11, paragraph (a) is regulations is available to all persons for proposed to be amended by adding the DEPARTMENT OF TRANSPORTATION a charge by phoning DC NEWS & DATA, following entries in numerical order to INC., at (202) 289–4357. the table and by revising the first Surface Transportation Board sentence to the undesignated text Environmental and Energy following the table to read as follows: 49 CFR Part 1039 Considerations § 1039.11 Miscellaneous commodities [STB Ex Parte No. 561] We preliminarily conclude that, if an exemptions. Rail General Exemption AuthorityÐ exemption is granted, it will not Nonferrous Recyclables significantly affect either the quality of (a) * * * the human environment or the AGENCY: Surface Transportation Board, conservation of energy resources. We Transportation. invite comments in this area.

STCC No. STCC tariff Commodity

***** 20511 .... 6001±X, eff .. Bread or other bakery products exc. biscuits, crackers, pretzels or other dry bakery products See 20521±20529. 1±1±96. 22941 ...... do ...... Textile waste, garnetted, processed, or recovered or recovered fibres or flock exc. packing or wiping cloths or rags. See 22994. 27004 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules

STCC No. STCC tariff Commodity

22973 ...... do ...... Textile fibres, laps, noils, nubs, roving, sliver or slubs, prepared for spinning, combed or converted. 22994 ...... do ...... Packing or wiping cloths or rags (processed textile wastes). 24293 ...... do ...... Shavings or sawdust. 30311 ...... do ...... Reclaimed rubber. 3229924 ...... do ...... Cullet (broken glass). 33312 ...... do ...... Copper matte, speiss, flue dust, or residues, etc. 33322 ...... do ...... Lead matte, speiss, flue dust, dross, slag, skimmings, etc. 33332 ...... do ...... Zinc dross, residues, ashes, etc. 33342 ...... do ...... Aluminum residues, etc. 33398 ...... do ...... Misc. nonferrous metal residues, including solder babbitt or type metal residues. 40112 ...... do ...... Ashes. 40212 ...... do ...... Brass, bronze, copper or alloy scrap, tailings, or wastes. 40213 ...... do ...... Lead, zinc, or alloy scrap, tailings or wastes. 40214 ...... do ...... Aluminum or alloy scrap, tailings or wastes. 4021960 ...... do ...... Tin scrap, consisting of scraps or pieces of metallic tin, clippings, drippings, shavings, turnings, or old worn-out block tin pipe having value for remelting purposes only. 40221 ...... do ...... Textile waste, scrap or sweepings. 40231 ...... do ...... Wood scrap or waste. 40241 ...... do ...... Paper waste or scrap. 40251 ...... do ...... Chemical or petroleum waste, including spent. 40261 ...... do ...... Rubber or plastic scrap or waste. 4029114 ...... do ...... Municipal garbage waste, solid, digested and ground, other than sewage waste or fertilizer. 4029176 ...... do ...... Automobile shredder residue. 4111434 ...... do ...... Bags, old, burlap, gunny, istle (ixtle), jute, or sisal, NEC. 41115 ...... do ...... Articles, used, returned for repair or reconditioning. 42111 ...... do ...... Nonrevenue movement of containers, bags, barrels, bottles, boxes, crates, cores, drums, kegs, reels, tubes, or car- riers, NEC, empty, returning in reverse of route used in loaded movement, and so certified. 42112 ...... do ...... Nonrevenue movement of shipping devices, consisting of blocking, bolsters, cradles, pallets, racks, skids, etc., empty, returning in reverse of route used in loaded movement, and so certified 42311 ...... do ...... Revenue movement of containers, bags, barrels, bottles, boxes, crates, cores, drums, kegs, reels, tubes, or carriers, NEC., empty, returning in reverse of route used in loaded movement and so certified.

Also excepted from this exemption are those commodities previously exempt, and any transportation service regarding which the Commission has made a finding of market dominance. *** * * * * * [FR Doc. 97–12951 Filed 5–15–97; 8:45 am] BILLING CODE 4915±00±P 27005

Notices Federal Register Vol. 62, No. 95

Friday, May 16, 1997

This section of the FEDERAL REGISTER used to capture applicant data. These DEPARTMENT OF AGRICULTURE contains documents other than rules or data are used by U.S. Department of proposed rules that are applicable to the Agriculture for various reports such as Agricultural Research Service public. Notices of hearings and investigations, Affirmative Action Plan and Report of committee meetings, agency decisions and Accomplishments for the Hiring, Intent To Grant Exclusive License rulings, delegations of authority, filing of petitions and applications and agency Placement, and Advancement of AGENCY: Agricultural Research Service, statements of organization and functions are Persons with Disabilities as required by USDA. EEOC Management Directive (MD) 714. examples of documents appearing in this ACTION: Notice of Intent. section. Estimate of Burden: Public reporting burden for this collection of information SUMMARY: Notice is hereby given that is estimated to average 5 minutes per the U.S. Department of Agriculture, DEPARTMENT OF AGRICULTURE response. Agricultural Research Service, intends to grant to Callaway Chemical Company Intent to Extend a Currently Approved Respondents: Individuals or Federal employees. of Columbus, Georgia, a coexclusive Information Collection Survey license with FMC Corporation and AGENCY: Policy Analysis and Estimated Number of Respondents: Rohm and Haas Company for U.S. Coordination Center, Human Resources 50,000. Patent No. 4,820,307 issued April 11, Management, USDA. Estimated Total Annual Burden on 1989, U.S. Patent No. 4,936,865 issued FORMAT: Notice and request for Respondents: 4,000 hours. June 26, 1990, and U.S. Patent No. comments. Copies of this collection and related 4,975,209 issued December 4, 1990, all entitled ‘‘Catalysts and Processes for SUMMARY: In accordance with the information can be obtained without Formaldehyde-Free Durable Press Paperwork Reduction Act of 1995 (Pub. charge from Larry Roberson, the Agency Finishing of Cotton Textiles with L. 104–13) and Office of Management OMB Clearance Officer, at (202) 720– Polycarboxylic Acids’’, and U.S. Patent and Budget (OMB) regulations at 5 CFR 6204. No. 5,221,285 issued June 22, 1993, Part 1320 (60 FR 44978, dated August Comments entitled ‘‘Catalysts and Processes for 29, 1995), this notice announces the Formaldehyde-Free Durable Press Policy Analysis and Coordination Comments are invited on: (a) Whether Finishing of Cotton Textiles with Center, Human Resources the proposed collection of information Polycarboxylic Acids, and Textiles Management’s (PACC–HRM), intention is necessary for the proper performance Made Therewith.’’ Notice of Availability to request an extension of a currently of the functions of the agency, including for U.S. Patent No. 4,820,307 was approved information collection survey, whether the information will have published in the Federal Register on the U.S. Department of Agriculture practical utility; (b) the accuracy of the September 22, 1988. U.S. Patent Nos. Applicant Supplemental Sheet. agency’s estimate of the burden of the 4,936,865 and 4,975,209 are divisions of DATES: Comments on this notice must be proposed collection of information U.S. Patent No. 4,820,307, and U.S. received by June 29, 1997, to be assured including the validity of the Patent No. 5,221,285 is a continuation- of consideration. methodology and assumptions used; (c) in-part of U.S. Patent No. 4,975,209. ADDITIONAL INFORMATION OR COMMENTS: ways to enhance the quality, utility, and DATES: Comments must be received on clarity of the information to be Contact Mary Ann Jenkins, PACC–HRM, or before July 15, 1997. U.S. Department of Agriculture, 1400 collected; and (d) ways to minimize the Independence Avenue, S.W., burden of the collection of information ADDRESSES: Send comments to: USDA, Washington, D.C. 20250–9603, (202) on those who are to respond, including ARS, Office of Technology Transfer, 720–0515. through the use of appropriate Room 415, Building 005, BARC-West, Beltsville, Maryland 20705–2350. SUPPLEMENTARY INFORMATION: automated, electronic, mechanical, or Title: U.S. Department of Agriculture other technological collection FOR FURTHER INFORMATION CONTACT: June Applicant Supplemental Sheet. techniques or other forms of information Blalock of the Office of Technology OMB Number: 0505–0009 technology. Comments may be sent to: Transfer at the Beltsville address given Expiration Date of Approval: June 30, Larry Roberson, Agency OMB Clearance above; telephone: 301–504–5989. 1997. Officer, U.S. Department of Agriculture, SUPPLEMENTARY INFORMATION: The Type of Request: Intent to extend a 1400 Independence Avenue, S.W., Federal Government’s patent rights to currently approved information Room 409–W, Jamie L. Whitten Federal this invention are assigned to the United collection. Building, Washington, D.C. 20250–7602. States of America, as represented by the Abstract: The Equal Employment All responses to this notice will be Secretary of Agriculture. It is in the Opportunity Commission (EEOC) summarized and included in the request public interest to so license this requires federal agencies to measure or for OMB approval. invention as Callaway Chemical otherwise keep statistics regarding the Company has submitted a complete and All comments will also become a extent to which recruitment efforts sufficient application for a license. The matter of public record. result in increased protected class prospective coexclusive license will be applicant flow. PACC–HRM devised Roger L. Bensey, royalty-bearing and will comply with and implemented a means for collecting Director of Human Resources Management. the terms and conditions of 35 U.S.C. such data on a nationwide basis. The [FR Doc. 97–12922 Filed 5–15–97; 8:45 am] 209 and 37 CFR 404.7. the prospective collection form, AD–1086, has been BILLING CODE 3410±01±M coexclusive license may be granted 27006 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices unless, within sixty days from the date organizations or associations of State to ensure adequate development, of this published Notice, the Departments of Agriculture. FAS enters supervision and execution of the proposed Agricultural Research Service receives into agreements with those nonprofit project; written evidence and argument which U.S. trade organizations that have the —The organization’s willingness to contribute resources including cash and establishes that the grant of the license broadest possible producer goods and services of the U.S. industry and would not be consistent with the representation of the commodity being foreign third parties; requirements of 35 U.S.C. 209 and 37 promoted and gives priority to those —The conditions or constraints affecting the CFR 404.7. organizations that are nationwide in level of U.S. exports and market share for Richard M. Parry, Jr., membership and scope. Program the agricultural commodities and products; Assistant Administrator. participants may not, during the term of —The degree to which the proposed project is likely to contribute to the creation, [FR Doc. 97–12921 Filed 5–15–97; 8:45 am] their agreement with FAS, make export expansion, or maintenance of foreign BILLING CODE 3410±03±M sales of the agricultural commodity being promoted or charge fees for markets; and —The degree to which the strategic plan is facilitating an export sale if promotional coordinated with other private or U.S. DEPARTMENT OF AGRICULTURE activities designed to result in that government-funded market development specific sale are supported by projects. Foreign Agricultural Service Cooperator program funds. Market Development Project Allocation Criteria Criteria for Evaluating Market Agreements involve the promotion of The purpose of this notice is to obtain Development Proposals for agricultural commodities on a generic comments from interested parties Participation in the Foreign Market basis and, therefore, do not involve regarding a proposed method of Development Cooperator Program activities targeted directly toward evaluating the relative merits of individual consumers. Approved AGENCY: Foreign Agricultural Service, different proposals for the purpose of activities contribute to the maintenance USDA. determining an appropriate funding or growth of demand for the agricultural level for each proposed project. ACTION: Notice and request for commodities and generally address comments. Meritorious proposals will compete for long-term foreign import constraints by funds on the basis of the following focusing on matters such as: SUMMARY: The Foreign Agricultural allocation criteria (the numbers in Service (FAS) has developed approval —Reducing infra-structural or historical parentheses represent a percentage criteria and weighting factors for market impediments; weight factor). Data used in the allocating funds on a competitive basis —Improving processing capabilities; calculations for contribution levels, past —Modifying codes and standards; and under the Foreign Market Development export performance and past demand —Identifying new markets or new expansion performance will cover not Cooperator Program. FAS invites applications or uses for the agricultural suggestions and comments regarding commodity or product in the foreign more than a 6-year period, to the extent these proposed factors. market. such data is available. DATES: In order to be considered, Approval Criteria (a) Contribution Level (40) written comments must be received by • June 16, 1997. FAS allocates funds in a manner that The applicant’s 6-year average share effectively supports the strategic of all contributions (contributions may ADDRESSES: Send comments to U.S. decision-making initiatives of the include cash and goods and services Department of Agriculture, Foreign Government Performance and Results provided by U.S. entities in support of Agricultural Service, Marketing Act (GPRA) of 1993. In deciding foreign market development activities) Operations Staff, STOP 1042, 1400 whether a proposed project will compared to Independence Ave., SW., Washington, contribute to the effective creation, • The applicant’s 6-year average share DC 20250–1042. expansion or maintenance of foreign of all Cooperator marketing plan FOR FURTHER INFORMATION CONTACT: markets, FAS seeks to identify a clear, budgets. The Marketing Operations Staff at (202) long-term agricultural trade strategy by (b) Past Export Performance (20) 720–4327. market or product and a program • SUPPLEMENTARY INFORMATION: effectiveness time line against which The 6-year average share of the results can be measured at specific value of exports promoted by the Background intervals using quantifiable product or applicant across Cooperator Program The Foreign Market Development country goals. These performance targeted markets compared to Cooperator (Cooperator) Program is indicators are part of FAS’s resource • The applicant’s 6-year average share authorized by Title VII of the allocation strategy to fund applicants of all Cooperator marketing plan Agricultural Trade Act of 1978, 7 U.S.C. which can demonstrate performance budgets plus a 6-year average share of 5721, et seq. The program is intended to based on a long-term strategic plan, Market Access Program (MAP) program create, expand and maintain foreign consistent with the strategic objectives ceiling levels and a 6-year average share markets for United States agricultural of the United States Department of of foreign overhead provided for co- commodities and products. The Foreign Agriculture’s Long-term Agricultural location within a U.S. agricultural trade Agricultural Service (FAS) administers Trade Strategy, and address the office in those targeted markets. the Cooperator Program and provides performance measurement objectives of (c) Past Demand Expansion cost share assistance to eligible trade the GPRA. Performance (20) organizations to carry out approved FAS considers a number of factors market development activities. Program when reviewing proposed projects. • The 6-year average share of the total regulations appear at 7 CFR part 1550. These factors include: value of world imports of the Under the Cooperator Program, FAS —The ability of the organization to provide commodities promoted by the applicant enters into Market Development Project an experienced U.S.-based staff with across Cooperator Program targeted Agreements with nonprofit U.S. trade technical and international trade expertise markets compared to Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27007

• The applicant’s 6-year average share ACTION: Notice of Intent to prepare an Associated with the Mineral Basin of all Cooperator marketing plan Environmental Impact Statement (EIS). expansion, the special use permit would budgets plus a 6-year average share of be expanded to include portions of the MAP program ceiling levels and a 6-year SUMMARY: The Forest Service will Uinta National Forest. A complete average share of foreign overhead prepare an environmental impact description of the proposal and its provided for co-location within a U.S. statement on Snowbird Ski and Summer elements is available from the Salt Lake agricultural trade office in those targeted Resort’s proposed master development Ranger District. markets. plan. In addition to obtaining a new Ski DATES: Comments concerning the scope Area Term Special Use Permit from the (d) Future Demand Expansion Goals of the analysis should be received in Forest Service, Snowbird may also be (20) writing by June 16, 1997. required to obtain a Department of (This criterion will receive a weight of ADDRESSES: Send written comments to Army 404 permit from the Army Corps 10 beginning with the year 2000 Michael Sieg, District Ranger, 6944 of Engineers and consult with the program) South 3000 East, Salt Lake City, Utah Environmental Protection Agency. They 84121. may also be required to obtain an • The total dollar value of the FOR FURTHER INFORMATION CONTACT: Rob amendment of water supply permit applicant’s projected world imports of agreement from Salt Lake City the commodities being promoted by the Cruz, District Environmental Coordinator, (801) 943–9483. Department of Public Utilities. applicant for the year 2003 across all A scoping document will be sent to SUPPLEMENTARY INFORMATION: Cooperator Program targeted markets Snowbird over 750 individuals, organizations and compared to Ski and Summer Resort, a ‘‘Special Use government agencies on May 16, 1997, • The applicant’s requested funding Permit’’ permittee is proposing to explaining the decision to conduct an level. update its master plan. Much of the environmental impact statement, and resort’s permitted boundary lies on soliciting comments. Comments (e) Accuracy of Past Demand Expansion National Forest System Land. This received from scoping documents on Projections proposal includes elements on both Snowbird’s Three and Five-year plans (Since the information is not currently public and private lands. Public land will be included in this analysis. Two available, this criterion will be used elements include the following: upgrade public meetings will be held during the beginning with the year 2000 program the Big Emma NASTAR course; regrade scoping period: June 2, 1997 at the and will receive a weight of 10) and asphalt the Gad Valley parking lot; Hampton Inn (10690 South, 160 West) construct a new day lodge facility in the in Sandy, Utah, and June 3, at the Lehi • The actual dollar value share of lower Gad Valley; upgrade the skier Public Library, 120 Center Street, Lehi, world imports of the commodities being services facilities on Hidden Peak with Utah. Both meetings will run from 7:00 promoted by the applicant for the year a multi-use structure; add additional p.m. to 9:00 p.m. Preliminary issues 1998 across all Cooperator Program snowmaking capacity which would be identified by the Forest Service targeted markets compared to completed in three phases and total interdisciplinary team include effects on • The applicant’s past projected share approximately 110 acres; construct a visual quality, effects on wetland and of world imports of the commodities new Gad III Chairlift; upgrade the Little riparian areas, effects on water quality being promoted by the applicant for the Cloud Chairlift to a fixed-grip quad; and quantity, effects on vegetation year 1998, as specified in the 1998 implement a vegetation management diversity, effects on fish and wildlife, Cooperator Program application. plan; regrade portions of the following effects on traffic and parking in Little The Commodity Division’s ski trails: Middle Bassackwards, Madam Cottonwood Canyon, recreational recommended program levels for each Annie, ski access to upper Big Emma, conflicts and effects on threatened, applicant are converted to a percent of Upper Regulator intermediate route, Big endangered and sensitive species. Two the total Cooperator Program funds Emma creek crossing, and Modify the preliminary alternatives have been available and multiplied by the total Blackjack Road: construct the following identified. The proposed action weight factor to determine the amount summer trails: Extension to the barrier- alternative would permit the of funds allocated to each applicant. free trail; trails that would augment aforementioned projects and require existing trails on both sides of Hidden Dated: May 6, 1997. Snowbird to convert to a new Ski Area Peak; construct an access road to the top Term Special Use Permit. The No Timothy J. Galvin, station of the Gad III lift; construct ski Action alternative would continue the Acting Administrator, Foreign Agricultural trails associated with the God III use as currently permitted with no new Service. chairlift; improve skier access from facilities. [FR Doc. 97–12836 Filed 5–15–97; 8:45 am] Hidden Peak into Peruvian Gulch and The public is invited to submit BILLING CODE 3410±10±M Mineral Basin. comments or suggestions to the address The following private land elements above. Comments received from are also included in this proposal; individuals, groups and government DEPARTMENT OF AGRICULTURE construct a quad lift and fixed-grip agencies received from the September Forest Service double in Mineral Basin; develop, 1993 and May 1995 scoping documents improve or maintain the following trails will be incorporated into this analysis. Snowbird Ski and Summer Resort and roads: Chips Switchback; Lower The responsible officials are Bernie Master Development Plan, Wasatch- Men’s Downhill Chute; South Ridge Weingardt and Peter Karp, Forest Cache National Forest, Salt Lake widening; construct new ski trails in Supervisors. A draft EIS is anticipated Ranger District, Salt Lake County, Utah Mineral Basin; a snowcat route from the to be filed in May 1998 and the final EIS and Uinta National Forest, Pleasant top of Little Cloud lift down into filed in November 1998. Grove Ranger District, Utah County, Mineral Basin; Mineral Basin access The comment period on the draft Utah tunnel/road; alter a rock chute in environmental impact statement will be Mineral Basin and install three 45 days from the date the AGENCY: Forest Service, USDA. avalauncher platforms in Mineral Basin. Environmental Protection Agency’s 27008 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices notice of availability appears in the FOR FURTHER INFORMATION CONTACT: 124–10272–10442; 0; n/a Federal Register. It is very important T. Jeremy Gunn, General Counsel and 124–10274–10332; 0; n/a that those interested in this proposed Associate Director for Research and FBI Documents: Postponed in Part action participate at that time. To be the Analysis, Assassination Records Review 124–10004–10025; 1; 10/2017 most helpful, comments on the draft Board, Second Floor, Washington, DC 124–10023–10253; 1; 10/2017 environmental impact statement should 20530, (202) 724–0088, fax (202) 724– 124–10041–10418; 1; 04/2007 be as specific as possible and may 0457. 124–10053–10350; 2; 10/2017 address the adequacy of the statements SUPPLEMENTARY INFORMATION: This 124–10058–10053; 1; 04/2007 or the merits of the alternatives notice complies with the requirements 124–10060–10318; 5; 10/2017 discussed (see The Council on 124–10062–10355; 1; 10/2017 of the President John F. Kennedy 124–10073–10345; 1; 04/2007 Environmental Quality Regulations for Assassination Records Collection Act of 124–10073–10426; 1; 10/2017 implementing the procedural provisions 1992, 44 U.S.C. 2107.9(c)(4)(A) (1992). 124–10073–10435; 2; 10/2017 of the National Environmental Policy On April 23–24, 1997, the Review Board 124–10087–10021; 2; 10/2017 Act at 40 CFR 1503.3). made formal determinations on records 124–10114–10010; 8; 04/2007 In addition, Federal court decisions it reviewed under the JFK Act. These 124–10115–10027; 8; 04/2007 have established that reviewers of draft determinations are listed below. The 124–10115–10028; 8; 04/2007 environmental impact statements must assassination records are identified by 124–10134–10075; 1; 10/2017 124–10135–10106; 2; 04/2007 structure their participation in the the record identification number environmental review of the proposal so 124–10140–10092; 1; 10/2017 assigned in the President John F. 124–10140–10096; 2; 04/2007 that it is meaningful and alerts an Kennedy Assassination Records 124–10147–10108; 1; 10/2017 agency to the reviewers’ position and Collection database maintained by the 124–10152–10046; 1; 10/2017 contentions. Vermont Yankee Nuclear National Archives. 124–10157–10423; 1; 10/2017 Power Corp. v. NRDC, 435 U.S. 519, 533 124–10166–10019; 1; 10/2017 (1978). Environmental objections that Notice of Formal Determinations 124–10256–10132; 1; 04/2007 could have been raised at the draft stage For each document, the number of 124–10004–10023; 1; 10/2017 may be waived if not raised until after postponements sustained immediately 124–10073–10424; 1; 10/2017 completion of the final environmental follows the record identification 124–10160–10030; 2; 10/2017 impact statement. City of Angoon v. 124–10163–10134; 2; 10/2017 number, followed, where appropriate, 124–10172–10020; 6; 10/2017 Hodel, (9th Circuit, 1986) and by the date the document is scheduled 124–10173–10484; 4; 04/2007 Wisconsin Heritages, Inc. v. Harris, 490 to be released or re-reviewed. 124–10173–10485; 7; 04/2007 F. Supp. 1334, 1338 (E.D. Wis. 1980). FBI Documents: Open in Full 124–10173–10489; 13; 04/2007 The reason for this is to ensure that 124–10173–10496; 5; 04/2007 substantive comments and objections 124–10026–10296; 0; n/a 124–10175–10039; 3; 10/2017 124–10027–10211; 0; n/a 124–10176–10180; 1; 10/2017 are made available to the Forest Service 124–10027–10463; 0; n/a at a time when it can meaningfully 124–10179–10129; 25; 04/2007 124–10031–10252; 0; n/a 124–10179–10358; 2; 10/2017 consider them and respond to them in 124–10042–10192; 0; n/a the final. 124–10181–10353; 1; 04/2007 124–10048–10477; 0; n/a 124–10184–10002; 10; 04/2007 Dated: May 8, 1997. 124–10050–10356; 0; n/a 124–10184–10015; 5; 04/2007 124–10050–10359; 0; n/a Michael Sieg, 124–10184–10016; 6; 04/2007 124–10053–10356; 0; n/a District Ranger. 124–10184–10019; 7; 04/2007 124–10058–10055; 0; n/a 124–10184–10257; 19; 04/2007 [FR Doc. 97–12851 Filed 5–15–97; 8:45 am] 124–10058–10057; 0; n/a 124–10184–10300; 2; 04/2007 BILLING CODE 3410±11±M 124–10058–10075; 0; n/a 124–10184–10310; 1; 04/2007 124–10058–10082; 0; n/a 124–10184–10311; 1; 04/2007 124–10058–10083; 0; n/a 124–10187–10208; 1; 10/2017 ASSASSINATION RECORDS REVIEW 124–10058–10088; 0; n/a 124–10191–10096; 2; 04/2007 124–10073–10348; 0; n/a BOARD 124–10191–10105; 1; 04/2007 124–10073–10351; 0; n/a 124–10231–10064; 6; 10/2017 124–10159–10492; 0; n/a Formal Determinations, Releases, 124–10247–10175; 1; 04/2007 124–10174–10222; 0; n/a 124–10249–10325; 5; 04/2007 Assassination Records Designation, 124–10236–10006; 0; n/a and Reconsideration 124–10264–10382; 1; 04/2007 124–10236–10008; 0; n/a 124–10268–10388; 2; 04/2007 124–10237–10230; 0; n/a AGENCY: Assassination Records Review 124–10269–10445; 3; 04/2007 124–10237–10377; 0; n/a Board. 124–10269–10469; 9; 04/2007 124–10241–10155; 0; n/a 124–10274–10320; 6; 04/2007 ACTION: Notice. 124–10253–10070; 0; n/a 124–10151–10233; 15; 10/2017 124–10256–10145; 0; n/a 124–10179–10347; 15; 10/2017 SUMMARY: The Assassination Records 124–10256–10147; 0; n/a 124–10184–10059; 15; 10/2017 Review Board (Review Board) met in a 124–10167–1014; 0; n/a 124–10185–10281; 15; 10/2017 closed meeting on April 23–24, and 124–10176–10325; 0; n/a 124–10185–10283; 15; 10/2017 made formal determinations on the 124–10241–10153; 0; n/a 124–10192–10011; 15; 10/2017 release of records under the President 124–10241–10157; 0; n/a 124–10273–10385; 15; 10/2017 John F. Kennedy Assassination Records 124–10253–10074; 0; n/a 124–10276–10464; 15; 10/2017 Collection Act of 1992 (JFK Act). By 124–10256–10162; 0; n/a 124–90001–10002; 65; 10/2017 issuing this notice, the Review Board 124–10261–10023; 0; n/a 124–90001–10003; 10; 10/2017 complies with the section of the JFK Act 124–10261–10152; 0; n/a 124–90001–10004; 4; 10/2017 124–10264–10250; 0; n/a that requires the Review Board to 124–90001–10005; 14; 10/2017 124–10264–10342; 0; n/a 124–90001–10010; 34; 10/2017 publish the results of its decisions on a 124–10264–10351; 0; n/a 124–90001–10013; 4; 10/2017 document-by-document basis in the 124–10264–10358; 0; n/a 124–90001–10014; 2; 10/2017 Federal Register within 14 days of the 124–10264–10360; 0; n/a 124–90001–10015; 7; 10/2017 date of the decision. 124–10272–10396; 0; n/a 124–90001–10016; 2; 10/2017 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27009

124–90001–10017; 4; 10/2017 104–10071–10366; 11; 10/2017 180–10143–10163; 1; 10/2017 124–90001–10022; 5; 10/2017 104–10071–10368; 9; 10/2017 180–10143–10173; 2; 10/2017 124–90001–10023; 6; 10/2017 104–10071–10372; 5; 10/2017 180–10143–10194; 3; 10/2017 124–90001–10026; 7; 10/2017 104–10071–10375; 5; 10/2017 180–10143–10203; 2; 10/2017 124–90001–10031; 1; 10/2017 104–10071–10383; 4; 10/2017 180–10143–10204; 4; 10/2017 CIA Documents: Postponed in Part 104–10071–10388; 3; 10/2017 180–10143–10206; 1; 10/2017 104–10071–10393; 2; 10/2017 180–10143–10211; 5; 05/2001 104–10069–10068; 2; 10/2017 104–10071–10402; 8; 10/2017 180–10143–10212; 4; 10/2017 104–10069–10077; 3; 10/2017 104–10071–10408; 1; 10/2017 INS Documents: Postponed in Part 104–10069–10082; 1; 10/2017 104–10071–10412; 1; 10/2017 104–10069–10086; 1; 10/2017 104–10071–10421; 2; 10/2017 136–10001–10356; 1; 10/2017 104–10069–10094; 3; 10/2017 104–10071–10432; 1; 10/2017 NSA Documents: Postponed in Part: 104–10069–10100; 1; 10/2017 104–10071–10437; 1; 10/2017 144–10001–10161; 1; 10/2017 104–10069–10102; 1; 10/2017 104–10072–10000; 1; 10/2017 104–10069–10103; 2; 10/2017 144–10001–10186; 2; 10/2017 104–10072–10013; 4; 10/2017 144–10001–10188; 6; 10/2017 104–10069–10104; 1; 10/2017 104–10072–10016; 1; 10/2017 104–10069–10112; 7; 10/2017 144–10001–10213; 5; 10/2017 104–10072–10020; 2; 10/2017 144–10001–10214; 4; 10/2017 104–10069–10122; 4; 10/2017 104–10072–10021; 6; 10/2017 104–10069–10194; 1; 10/2017 144–10001–10215; 2; 10/2017 104–10072–10023; 1; 10/2017 144–10001–10217; 5; 10/2017 104–10069–10236; 4; 10/2017 104–10072–10032; 12; 10/2017 144–10001–10218; 3; 10/2017 104–10069–10237; 1; 10/2017 104–10072–10077; 1; 10/2017 144–10001–10219; 2; 10/2017 104–10069–10275; 3; 10/2017 104–10072–10080; 6; 10/2017 144–10001–10227; 1; 10/2017 104–10069–10281; 2; 10/2017 104–10072–10083; 2; 10/2017 144–10001–10229; 3; 10/2017 104–10069–10283; 3; 10/2017 104–10072–10088; 23; 10/2017 144–10001–10230; 4; 10/2017 104–10069–10285; 1; 10/2017 104–10072–10089; 5; 10/2017 144–10001–10246; 1; 10/2017 104–10069–10288; 3; 10/2017 104–10072–10094; 10; 10/2017 104–10069–10299; 2; 10/2017 104–10072–10101; 8; 10/2017 Notice of Additional Releases 104–10069–10332; 6; 10/2017 104–10072–10107; 2; 10/2017 104–10069–10334; 3; 10/2017 After consultation with appropriate 104–10072–10112; 1; 10/2017 Federal agencies, the Review Board 104–10069–10349; 11; 10/2017 104–10072–10114; 5; 10/2017 104–10069–10374; 10; 10/2017 104–10072–10144; 1; 10/2017 announces that the following Central 104–10069–10375; 10; 10/2017 104–10072–10186; 3; 10/2017 Intelligence Agency records are now 104–10069–10376; 1; 10/2017 104–10072–10188; 9; 10/2017 being opened in full: 104–10069–10421; 1; 10/2017 104–10072–10212; 1; 10/2017 104–10069–10432; 3; 10/2017 104–10001–10011; 104–10001–10020; 104– 104–10072–10225; 19; 10/2017 10001–10030; 104–10001–10060; 104– 104–10070–10086; 3; 10/2017 104–10072–10226; 5; 10/2017 104–10070–10089; 3; 10/2017 10001–10065; 104–10001–10068; 104– 104–10072–10260; 1; 10/2017 10001–10070; 104–10001–10138; 104– 104–10070–10090; 2; 10/2017 104–10072–10262; 7; 10/2017 104–10070–10091; 1; 10/2017 10001–10143; 104–10001–10156; 104– 104–10072–10263; 1; 10/2017 10001–10161; 104–10001–10161; 104– 104–10070–10117; 6; 10/2017 104–10072–10264; 2; 10/2017 104–10070–10118; 9; 10/2017 10001–10165; 104–10001–10176; 104– 104–10072–10267; 1; 10/2017 10002–10002; 104–10002–10003; 104– 104–10070–10122; 2; 10/2017 104–10072–10272; 5; 10/2017 104–10070–10147; 1; 10/2017 10002–10006; 104–10002–10011; 104– 104–10072–10276; 1; 10/2017 10002–10012; 104–10002–10013; 104– 104–10070–10150; 10; 10/2017 104–10072–10288; 3; 10/2017 104–10070–10172; 1; 10/2017 10002–10015; 104–10002–10020; 104– 104–10072–10291; 19; 10/2017 10002–10038; 104–10002–10041; 104– 104–10071–10106; 2; 10/2017 104–10072–10311; 8; 10/2017 104–10071–10108; 1; 10/2017 10002–10042; 104–10002–10057; 104– 104–10073–10070; 5; 10/2017 10002–10065; 104–10002–10091; 104– 104–10071–10222; 5; 10/2017 104–10073–10072; 3; 10/2017 104–10071–10229; 7; 10/2017 10002–10093; 104–10002–10099; 104– 104–10071–10237; 5; 10/2017 HSCA Documents: Postponed in Part 10002–10103; 104-10002–10111; 104–10002– 104–10071–10238; 1; 10/2017 180–10142–10308; 8; 10/2017 10114; 104–10002–10120; 104–10002–10124; 104–10071–10239; 3; 10/2017 180–10142–10310; 7; 10/2017 104–10002–10126; 104–10002–10127; 104– 104–10071–10243; 1; 10/2017 180–10142–10311; 6; 10/2017 10003-10003; 104–10003–10007; 104–10003– 104–10071–10248; 4; 10/2017 180–10142–10312; 5; 10/2017 10010; 104–10003–10013; 104–10003–10018; 104–10071–10254; 5; 10/2017 180–10142–10315; 2; 10/2017 104–10003–10028; 104–10003–10033; 104– 104–10071–10260; 4; 10/2017 180–10142–10316; 6; 10/2017 10003–10046; 104–10003–10048; 104– 104–10071–10269; 5; 10/2017 180–10142–10317; 1; 10/2017 10003–10051; 104–10003–10052; 104– 104–10071–10274; 3; 10/2017 180–10142–10318; 3; 10/2017 10003–10054; 104–10003–10061; 104– 104–10071–10279; 5; 10/2017 180–10142–10320; 1; 05/2001 10003–10063; 104–10003–10065; 104– 104–10071–10282; 5; 10/2017 180–10142–10373; 3; 10/2017 10003–10068; 104–10003–10080; 104– 104–10071–10294; 5; 10/2017 180–10142–10379; 8; 10/2017 10003–10082; 104–10003–10084; 104– 104–10071–10302; 4; 10/2017 180–10142–10385; 13; 10/2017 10003–10107; 104–10003–10133; 104– 104–10071–10315; 11; 10/2017 180–10142–10389; 1; 10/2017 10003–10138; 104–10003–10141; 104– 104–10071–10316; 5; 10/2017 180–10142–10390; 1; 10/2017 10003–10155; 104–10003–10184; 104– 104–10071–10318; 13; 10/2017 180–10142–10404; 3; 10/2017 10003–10189; 104–10003–10190; 104– 104–10071–10321; 5; 10/2017 180–10142–10406; 3; 10/2017 10003–10192; 104–10003–10205; 104– 104–10071–10323; 3; 10/2017 180–10142–10413; 16; 10/2017 10003–10206; 104–10003–10208; 104– 104–10071–10327; 5; 10/2017 180–10143–10109; 5; 10/2017 10003–10230; 104–10003–10233; 104– 104–10071–10330; 5; 10/2017 180–10143–10110; 1; 10/2017 10013–10169 104–10071–10334; 4; 10/2017 180–10143–10111; 11; 10/2017 After consultation with appropriate 104–10071–10336; 5; 10/2017 180–10143–10114; 5; 10/2017 Federal agencies, the Review Board 104–10071–10339; 6; 10/2017 180–10143–10116; 10; 05/2001 announces that the following House 104–10071–10343; 4; 10/2017 180–10143–10121; 2; 10/2017 Select Committee on Assassination 104–10071–10349; 6; 10/2017 180–10143–10131; 6; 10/2017 104–10071–10357; 4; 10/2017 180–10143–10134; 38; 10/2017 records are now being opened in full: 104–10071–10360; 1; 10/2017 180–10143–10145; 18; 10/2017 180–10065–10381; 180–10068–10372; 180– 104–10071–10363; 5; 10/2017 180–10143–10151; 3; 10/2017 10068–10373; 180–10071–10068; 180– 27010 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

10072–10081; 180–10073–10070; 180– 10110–10213; 180–10110–10218; 180– 20003–10275, 179–20003–10298, 179– 10073–10071; 180–10073–10138; 180– 10110–10219; 180–10110–10234; 180– 20003–10451, 179–20004–10231, 179– 10074–10440; 180–10075–10136; 180– 10112–10413; 180–10112–10427; 180– 30001–10094, 179–30001–10154, 179– 10075–10137; 180–10075–10355; 180– 10114–10323; 180–10114–10329; 180– 30001–10254, 179–30001–10376, 179– 10076–10310; 180–10076–10403; 180– 10116–10101; 180–10116–10102; 180– 30001–10416, 179–30001–10420, 179– 10076–10415; 180–10077–10063; 180– 10116–10201; 180–10117–10138; 180– 30002–10025 10078–10017; 180–10078–10409; 180– 10117–10228; 180–10120–10311; 180– 10080–10416; 180–10080–10417; 180– 10120–10334; 180–10120–10356 Notice of Assassination Records Designation 10083–10142; 180–10094–10182; 180– After consultation with appropriate 10094–10453; 180–10096–10038; 180– Federal agencies, the Review Board Designation: On April 23–24, 1997, 10097–10343; 180–10097–10344; 180– announces that the following Ford 10101–10267; 180–10101–10291; 180– the Review Board designated the 10102–10315; 180–10102–10492; 180– Library records are now being opened in following document an ‘‘assassination 10104–10116; 180–10104–10219; 180– full: record’’: The film known as the out-of- 10104–10404; 180–10104–10405; 180– 178–10002–10087; 178–10002–10157; 178– camera original Zapruder Film currently 10104–10406; 180–10105–10075; 180– 10002–10160; 178–10002–10161; 178– housed at the National Archives and 10105–10083; 180–10105–10207; 180– 10002–10162; 178–10002–10163; 178– identified as 200 ZAP 1; ORSK (P) 8mm. 10105–10306; 180–10105–10329; 180– 10002–10164; 178–10002–10165; 178– 10106–10376; 180–10106–10384; 180– 10002–10178; 178–10002–10184; 178– Designation: On April 23–24, 1997, 10108–10018; 180–10108–10081; 180– 10002–10196; 178–10002–10246; 178– the Review Board designated the 10108–10208; 180–10108–10232; 180– 10002–10348; 178–10002–10361; 178– following United States Secret Service 10110–10051; 180–10110–10052; 180– 10003–10050; 178–10003–10321; 178– records ‘‘assassination records’’: USSS– 10110–10053; 180–10110–10055; 180– 10004–10052; 178–10004–10128; 178– FBI Agreement (drafts dated 11–27–64 10110–10060; 180–10110–10084; 180– 10004–10282 and 12–3–64), 16 pages; documents 10110–10087; 180–10110–10088; 180– After consultation with appropriate from the Raymond Broshears file (CO– 10110–10089; 180–10110–10090; 180– Federal agencies, the Review Board 2–42269), 32 pages; documents from the 10110–10098; 180–10110–10107; 180– Abraham Bolden file (J–CO–1–9513), 10110–10109; 180–10110–10111; 180– announces that the following National 10110–10112; 180–10110–10114; 180– Archives and Records Administration 1311 pages. The Review Board also 10110–10115; 180–10110–10116; 180– records are now being opened in full: confirmed that the Pedro Diaz Lanz file 10110–10117; 180–10110–10119; 180– 179–20001–10111, 179–20001–10148, 179– (CO–2–29146), 115 pages, is an 10110–10120; 180–10110–10126; 180– 20001–10172, 179–20001–10223, 179– ‘‘assassination record.’’ 10110–10128; 180–10110–10148; 180– 20001–10258, 179–20001–10264, 179– Notice of Corrections 10110–10149; 180–10110–10151; 180– 20001–10271, 179–20001–10325, 179– 10110–10153; 180–10110–10154; 180– 20002–10094, 179–20002–10204, 179– On November 14, 1996, the Review 10110–10156; 180–10110–10161; 180– 20002–10205, 179–20002–10220, 179– Board made formal determinations that 10110–10165; 180–10110–10184; 180– 20002–10226, 179–20002–10287, 179– 10110–10185; 180–10110–10186; 180– 20002–10449, 179–20003–10085, 179– were published in the December 6, 1996 10110–10187; 180–10110–10188; 180– 20003–10087, 179–20003–10132, 179– Federal Register (FR Doc. 96–31046, 61 10110–10194; 180–10110–10201; 180– 20003–10135, 179–20003–10149, 179– FR 64662 ). For that notice, make the 10110–10205; 180–10110–10212; 180– 20003–10246, 179–20003–10262, 179– following corrections:

Corrected record Original record number number Document data

104±10066±10082 ...... 104±10066±10084 0; 2; 05/1997

On November 14, 1996, the Review were published in the December 6, 1996 FR 64662 ). For that notice, make the Board made formal determinations that Federal Register (FR Doc. 96–31046, 61 following corrections:

Original record number Previously published Corrected data

144±10001±10053 ...... Released in Full 2; 1; 10/2017 144±10001±10057 ...... Released in Full 2; 1; 10/2017 144±10001±10087 ...... 16; 6; 10/2017 .... 15; 7; 10/2017 144±10001±10117 ...... 19; 9; 10/2017 .... 18; 10; /2017 144±10001±10118 ...... 18; 10; 10/2017 .. 17; 11; 10/2017 144±10001±10141 ...... Released in Full 2; 1; 10/2017 144±10001±10155 ...... Released in Full 2; 1; 10/2017

On March 13–14, 1997 the Review were published in the April 2, 1997 FR 15650). For that notice, make the Board made formal determinations that Federal Register (FR Doc. 97–8408, 62 following corrections:

Previously Original record number published Corrected data

124±10172±10020 ...... 5; 5; 10/2017 5; 6; 10/2017 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27011

Notice of Reconsideration organizations that will furnish the purpose is to provide interested persons At its March 13–14, 1997 meeting the services to the Government. an opportunity to submit comments on Review Board voted on FBI documents 2. The action will not have a severe the possible impact of the proposed 124-10062–10331 and 124–10120– economic impact on current contractors actions. 10017, (reported at FR Doc. 97–8408, 62 for the services. If the Committee approves the FR 15650). The Review Board has voted 3. The action will result in proposed additions, all entities of the to allow the FBI additional time to authorizing small entities to furnish the Federal Government (except as provide information to the Review services to the Government. otherwise indicated) will be required to Board with respect to these documents. 4. There are no known regulatory procure the commodities and services alternatives which would accomplish listed below from nonprofit agencies Dated: May 13, 1997. the objectives of the Javits-Wagner- employing persons who are blind or David G. Marwell, O’Day Act (41 U.S.C. 46—48c) in have other severe disabilities. I certify Executive Director. connection with the services proposed that the following action will not have [FR Doc. 97–12860 Filed 5–15–97; 8:45 am] for addition to the Procurement List. a significant impact on a substantial BILLING CODE 6118±01±P Accordingly, the following services number of small entities. The major are hereby added to the Procurement factors considered for this certification List: were: COMMITTEE FOR PURCHASE FROM Grounds Maintenance 1. The action will not result in any PEOPLE WHO ARE BLIND OR Recreation Areas, additional reporting, recordkeeping or SEVERELY DISABLED Hickam Air Force Base, Hawaii other compliance requirements for small Procurement List Additions Laundry Service entities other than the small organizations that will furnish the Cadet Linen Exchange Service, AGENCY: commodities and services to the Committee for Purchase From U.S. Air Force Academy, People Who Are Blind or Severely Colorado Springs, Colorado Government. Disabled. 2. The action does not appear to have Library Services ACTION: Additions to the procurement a severe economic impact on current list. Minot Air Force Base, North Dakota contractors for the commodities and This action does not affect current services. SUMMARY: This action adds to the contracts awarded prior to the effective 3. The action will result in Procurement List services to be date of this addition or options that may authorizing small entities to furnish the furnished by nonprofit agencies be exercised under those contracts. commodities and services to the employing persons who are blind or Beverly L. Milkman, Government. have other severe disabilities. Executive Director. EFFECTIVE DATE: June 16, 1997. 4. There are no known regulatory [FR Doc. 97–12902 Filed 5–15–97; 8:45 am] alternatives which would accomplish ADDRESSES: Committee for Purchase BILLING CODE 6353±01±P the objectives of the Javits-Wagner- From People Who Are Blind or Severely O’Day Act (41 U.S.C. 46—48c) in Disabled, Crystal Square 3, Suite 403, connection with the commodities and 1735 Jefferson Davis Highway, COMMITTEE FOR PURCHASE FROM services proposed for addition to the Arlington, Virginia 22202–3461. PEOPLE WHO ARE BLIND OR Procurement List. Comments on this FOR FURTHER INFORMATION CONTACT: SEVERELY DISABLED certification are invited. Commenters Beverly Milkman (703) 603–7740. should identify the statement(s) SUPPLEMENTARY INFORMATION: On Procurement List Proposed Additions underlying the certification on which February 14, 28 and March 21, 1997, the AGENCY: Committee for Purchase From they are providing additional Committee for Purchase From People People Who Are Blind or Severely information. Who Are Blind or Severely Disabled Disabled. The following commodities and published notices (62 FR 6946, 9158 ACTION: Proposed additions to services have been proposed for and 13591) of proposed additions to the procurement list addition to Procurement List for Procurement List. production by the nonprofit agencies After consideration of the material SUMMARY: The Committee has received listed: presented to it concerning capability of proposal(s) to add to the Procurement Commodities qualified nonprofit agencies to provide List commodities and services to be the services and impact of the additions furnished by nonprofit agencies Office and Miscellaneous Supplies on the current or most recent employing persons who are blind or (Requirements for Fort Dix, New Jersey) contractors, the Committee has have other severe disabilities. NPA: Winston-Salem Industries for the determined that the services listed COMMENTS MUST BE RECEIVED ON OR Blind, Winston-Salem, North Carolina below are suitable for procurement by BEFORE: June 16, 1997. Services the Federal Government under 41 U.S.C. ADDRESSES: 46–48c and 41 CFR 51–2.4. I certify that Committee for Purchase Laundry Service the following action will not have a From People Who Are Blind or Severely Transient Personnel Unit, BEQ & BOQ, Fleet significant impact on a substantial Disabled, Crystal Square 3, Suite 403, Anti-Submarine Warfare Center, San number of small entities. The major 1735 Jefferson Davis Highway, Diego, California factors considered for this certification Arlington, Virginia 22202–3461. NPA: Job Options, Inc., San Diego, California were: FOR FURTHER INFORMATION CONTACT: Linen Rental Service (Standard Grade Linen) Beverly Milkman (703) 603–7740. 1. The action will not result in any Fleet and Industrial Supply Center, Norfolk, additional reporting, recordkeeping or SUPPLEMENTARY INFORMATION: This Virginia other compliance requirements for small notice is published pursuant to 41 NPA: Louise W. Eggleston Center, Inc., entities other than the small U.S.C. 47(a)(2) and 41 CFR 51–2.3. Its Norfolk, Virginia 27012 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Linen Rental Service (Premium Grade Linen) only available from the State DEPARTMENT OF COMMERCE Fleet and Industrial Supply Center, Norfolk, administering the program. Virginia Economics and Statistics NPA: Louise W. Eggleston Center, Inc., II. Method of Collection Administration Norfolk, Virginia Information is obtained from State Colonial Workshop, Inc., Williamsburg, 2000 Census Advisory Committee Virginia agencies who voluntarily agree to Chesapeake Service Systems, Inc., provide data on programs they AGENCY: Economics and Statistics Chesapeake, Virginia administer regarding public assistance Administration, Department of Beverly L. Milkman, payments by county. Submission of the Commerce. Executive Director. data is requested in the form that is ACTION: Notice of public meeting. most expedient and convenient for the [FR Doc. 97–12903 Filed 5–15–97; 8:45 am] agencies. SUMMARY: Pursuant to the Federal BILLING CODE 6353±01±P Advisory Committee Act (Pub. L. 92– III. Data 463, as amended by Public Law 94–409, Public Law 96–523, and Public Law 97– OMB Number: 0608–0037. DEPARTMENT OF COMMERCE 375), we are giving notice of a meeting Form Number: NA. of the 2000 Census Advisory Bureau of Economic Analysis Type of Review: Renewal—regular Committee. The meeting will convene submission. on May 30, 1997 at the Inn and Public Assistance Payments by Affected Public: State government Conference Center, University of County agencies. Maryland University College, University Boulevard and Adelphi Road, College ACTION: Proposed collection; comment Estimated Number of Respondents: Park, MD 20742. The agenda includes requested. 24. discussions on the Race and Ethnic Targeted Test Results and the decision- SUMMARY: The Department of Estimated Time Per Response: 6 hours Commerce, as part of its continuing per reporter. making process for OMB Directive effort to reduce paperwork and Estimated Total Annual Burden Number 15. The Advisory Committee is composed respondent burden, invites the general Hours: 144 hours. of a Chair, Vice-Chair, and up to 35 public and other Federal agencies to Estimated Total Annual Cost: The member organizations, all appointed by take this opportunity to comment on estimated total annual cost to the the Secretary of Commerce. The proposed and/or continuing information government is $2,200. The estimated Advisory Committee will consider the collections, as required by the annual cost to the public is $2,880 based goals of Census 2000 and user needs for Paperwork Reduction Act of 1995. on total number of hours estimated as information provided by that census Public Law 104–13 (44 U.S.C. the reporting burden and an estimated and provide a perspective from the 3506(c)(2)(A)). hourly cost of $20. standpoint of the outside user DATES: Written comments must be Respondent’s Obligation: Voluntary. community about how operational submitted on or before July 15, 1997. Legal Authority: 15 U.S.C. 175 and planning and implementation methods ADDRESSES: Direct all written comments 1516. proposed for Census 2000 will realize to Linda Engelmeier, Departmental those goals and satisfy those needs. The Forms Clearance Officer, Department of IV. Request for Comments Advisory Committee shall consider all Commerce, Room 5327, 14th and aspects of the conduct of the 2000 Comments are invited on: (a) Whether Constitution Avenue NW, Washington, Census of Population and Housing and the proposed collection of information DC 20230. Phone number: (202) 482– shall make recommendations for is necessary for the proper performance 3272. improving that census. of the functions of the agency, including FOR FURTHER INFORMATION CONTACT: whether the information shall have DATES: On Friday, May 30, 1997, the Requests for additional information or practical utility; (b) the accuracy of the meeting will begin at 8:45 a.m. and copies of the information collection agency’s estimate of burden (including adjourn for the day at 4:30 p.m. instrument and instructions should be hours and cost) of the proposed ADDRESSES: The meeting will take place directed to: Robert L. Brown, Chief, collection of information; (c) ways to at the Inn and Conference Center, Regional Economic Measurement enhance the quality, utility, and clarity University of Maryland University Division, Bureau of Economic Analysis, of the information to be collected; and College, University Boulevard and U.S. Department of Commerce, (d) ways to minimize the use of Adelphi Road, College Park, MD 20742. Washington, DC 20230; phone (202) automated collection techniques or FOR FURTHER INFORMATION CONTACT: 606–9246; and fax: (202) 606-5322. other forms of information technology. Anyone wishing additional information about this meeting or who wishes to SUPPLEMENTARY INFORMATION: Comments submitted in response to submit written statements or questions this notice will be summarized an/or I. Abstract may contact Maxine Anderson-Brown, included in the request for OMB Committee Liaison Officer, Department The Bureau of Economic Analysis approval of this information collection; of Commerce, Bureau of the Census, prepares estimates of personal income they also will become a matter of public Room 3039, Federal Building 3, for States and counties. To produce record. county estimates of State-administered Washington, DC 20233, telephone: 301– public assistance payments, which are a Dated: May 12, 1997. 457–2308, TDD 301–457–2540. part of personal income, it is necessary Linda Engelmeier, SUPPLEMENTARY INFORMATION: A brief to request data directly from the Departmental Forms Clearance Officer, Office period will be set aside for public responsible State agencies. The data, of Management and Organization. comment and questions. However, which are compiled by the States for [FR Doc. 97–12835 Filed 5–15–97; 8:45 am] individuals with extensive questions or their own administrative purposes, are BILLING CODE 3510±EA±P statements for the record must submit Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27013 them in writing to the Commerce notice of amended final results of may vary from the percentages stated Department official named above at administrative review, correcting above. The Department will issue least three working days prior to the several clerical errors in the calculation appraisement instructions directly to meeting. of the antidumping margin for the the Customs Service. The meeting is physically accessible Borusan Group (Borusan) (62 FR 16547). We will direct the Customs Service to to people with disabilities. Requests for On April 11, 1997, Borusan filed a collect cash deposits of estimated sign language interpretation or other timely allegation, pursuant to 19 CFR antidumping duties on all appropriate auxiliary aids should be directed to 353.28, that a ministerial error had been entries in accordance with the Kathy Maney; her telephone number is made in the calculation of the amended procedures discussed in the final results 301–457–2308, TDD 301–457–2540. final results. Specifically, Borusan of the review (61 FR 69067) and as Dated: May 9, 1997. alleged that, in amending its final amended by this determination. The results to correct certain cost data, the Everett M. Ehrlich, amended deposit requirements are Department failed to re-run the portion effective for all shipments of the subject Under Secretary for Economic Affairs, of the computer program that contained Economics and Statistics Administration. merchandise entered, or withdrawn the cost test, and instead relied on a from warehouse, for consumption on or [FR Doc. 97–12920 Filed 5–15–97; 8:45 am] database of above-cost sales that did not after the date of publication of this BILLING CODE 3510±EA±M incorporate the corrections to the cost notice and shall remain in effect until data. publication of the final results of the We have determined that the April 7, DEPARTMENT OF COMMERCE next administrative review. 1997, amended final results of review This notice reminds importers of their International Trade Administration contain the ministerial error alleged by responsibility under 19 CFR 353.26 to Borusan. Therefore, in accordance with file a certificate regarding the [A±489±501] section 751(h) of the Act and 19 CFR reimbursement of antidumping duties 353.28(c), we are further amending the prior to liquidation of the relevant Notice of Amended Final Results of final results of administrative review of entries during this review period. Antidumping Duty Administrative steel pipe and tube from Turkey for the Failure to comply with this requirement Review: Certain Welded Carbon Steel period May 1, 1994, through April 30, could result in the Secretary’s Pipe and Tube From Turkey 1995, to correct this ministerial error. presumption that reimbursement of AGENCY: Import Administration, Scope of the Review antidumping duties occurred and the subsequent assessment of double International Trade Administration, Imports covered by this review are antidumping duties. Department of Commerce. shipments of certain welded carbon EFFECTIVE DATE: May 16, 1997. This notice also reminds parties steel pipe and tube products with an subject to administrative protective FOR FURTHER INFORMATION CONTACT: outside diameter of 0.375 inch or more order (APO) of their responsibility Gabriel Adler at (202) 482–1442 or Kris but not over 16 inches, of any wall concerning the return or destruction of Campbell at (202) 482–3813, Office of thickness. These products are currently proprietary information disclosed under Antidumping/Countervailing Duty classifiable under the following APO in accordance with 19 CFR Enforcement, Import Administration, Harmonized Tariff Schedule of the 353.34(d). Failure to comply is a International Trade Administration, United States (HTSUS) subheadings: violation of the APO. 7306.30.10.00, 7306.30.50.25, U.S. Department of Commerce, 14th This administrative review and notice 7306.30.50.32, 7306.30.50.40, Street and Constitution Avenue, N.W., are in accordance with section 751(a)(1) 7306.30.50.55, 7306.30.50.85, and Washington, D.C. 20230. of the Act (19 U.S.C. 1675(a)(1)) and 19 7306.30.50.90. These products, CFR 353.28. Applicable Statute and Regulations commonly referred to in the industry as Unless otherwise indicated, all standard pipe and tube, are produced to Dated: May 9, 1997. citations to the statute are references to various American Society for Testing Robert S. LaRussa, the provisions effective January 1, 1995, and Materials (ASTM) specifications, Acting Assistant Secretary for Import the effective date of the amendments most notably A–120, A–53 or A–135. Administration. made to the Tariff Act of 1930 (the Act) Although the HTSUS subheadings are [FR Doc. 97–12793 Filed 5–15–97; 8:45 am] by the Uruguay Round Agreements Act provided for convenience and customs BILLING CODE 3510±DS±P (URAA). In addition, unless otherwise purposes, our written description of the indicated, all citations to the scope of this proceeding is dispositive. DEPARTMENT OF COMMERCE Department’s regulations are to the Amended Final Results of Review current regulations, as amended by the interim regulations published in the Upon correction of the above-cited International Trade Administration ministerial error, we have determined Federal Register on May 11, 1995 (60 [A±489±501] FR 25130). that the following margins exist for the period indicated: Notice of Amended Final Results of Amended Final Results Antidumping Duty Administrative Manufacturer/ Margin On December 31, 1996, the exporter Time period percent Review: Certain Welded Carbon Steel Department of Commerce (the Pipe and Tube From Turkey Department) published the final results Borusan of its administrative review of the Group ...... 5/1/94±4/30/95 2.57 AGENCY: Import Administration, antidumping duty order on certain International Trade Administration, welded carbon steel pipe and tube (pipe The Department shall determine, and Department of Commerce. and tube) from Turkey, for the period of the Customs Service shall assess, EFFECTIVE DATE: May 16, 1997. review (POR) May 1, 1994, through antidumping duties on all appropriate FOR FURTHER INFORMATION CONTACT: April 30, 1995 (61 FR 69067). On April entries. Individual differences between Brian Smith at (202) 482–1766 or Kris 7, 1997, the Department published a United States price and normal value Campbell at (202) 482–3813, Office of 27014 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Antidumping/Countervailing Duty 7306.30.50.32, 7306.30.50.40, This administrative review and notice Enforcement, Import Administration, 7306.30.50.55, 7306.30.50.85, and are in accordance with section 751(a)(1) International Trade Administration, 7306.30.50.90. These products, of the Act (19 U.S.C. 1675(a)(1)) and 19 U.S. Department of Commerce, 14th commonly referred to in the industry as CFR 353.28. Street and Constitution Avenue, NW., standard pipe and tube, are produced to Dated: May 9, 1997. Washington, DC 20230. various American Society for Testing Robert S. LaRussa, Applicable Statute and Regulations and Materials (ASTM) specifications, Acting Assistant Secretary for Import most notably A–120, A–53 or A–135. Administration. Unless otherwise indicated, all Although the HTSUS subheadings are [FR Doc. 97–12794 Filed 5–15–97; 8:45 am] citations to the Tariff Act of 1930 (the provided for convenience and customs BILLING CODE 3510±DS±P Act), as amended, are references to the purposes, our written description of the provisions effective January 1, 1995, the scope of this proceeding is dispositive. effective date of the amendments made DEPARTMENT OF COMMERCE to the Tariff Act of 1930 (the Act) by the Amended Final Results of Review Uruguay Round Agreements Act Upon correction of the ministerial National Oceanic and Atmospheric (URAA). In addition, unless otherwise errors, we have determined that the Administration indicated, all citations to the following margins exist for the period Department’s regulations are to the indicated: Bluefin Tuna Statistical Documents current regulations, as amended by the ACTION: Proposed collection; comment interim regulations published in the Manufacturer/ Time period Margin request. Federal Register on May 11, 1995 (60 exporter percent FR 25130). SUMMARY: The Department of Erbosan ...... 5/1/94±4/30/95 7.54 Commerce, as part of its continuing Amended Final Results effort to reduce paperwork and The Department shall determine, and On December 31, 1996, the respondent burden, invites the general the Customs Service shall assess, Department of Commerce (the public and other Federal agencies to antidumping duties on all appropriate Department) published the final results take this opportunity to comment on entries. Individual differences between of its administrative review of the proposed and/or continuing information United States price and normal value antidumping duty order on certain collections, as required by the may vary from the percentages stated welded carbon steel pipe and tube (pipe Paperwork Reduction Act of 1995, above. The Department will issue and tube) from Turkey (61 FR 69067). Public Law 104–13 (44 U.S.C. appraisement instructions directly to The period of review (POR) is May 1, 3506(c)(2)(A)). 1994, through April 30, 1995. the Customs Service. We will direct the Customs Service to DATES: Written comments must be On January 17, 1997, Erciyas Boru submitted on or before July 15, 1997. Sanayii ve Ticaret A.S. (Erbosan) filed a collect cash deposits of estimated antidumping duties on all appropriate ADDRESSES: Direct all written comments timely allegation, pursuant to 19 CFR to Linda Engelmeier, Departmental 353.28, of a ministerial error with regard entries in accordance with the procedures discussed in the final results Forms Clearance Officer, Department of to the final results in the 1994–95 Commerce, Room 5327, 14th and administrative review of the of the review (61 FR 69067) and as amended by this determination. The Constitution Avenue, NW, Washington antidumping duty order on pipe and DC 20230. tube from Turkey. Erbosan alleged that amended deposit requirements are FOR FURTHER INFORMATION CONTACT: the Department intended to index costs effective for all shipments of the subject Requests for additional information or based on the month of shipment, but merchandise entered, or withdrawn copies of the information collection instead indexed based on the sale date. from warehouse, for consumption on or We have determined, in accordance after the date of publication of this instrument(s) and instructions should with section 751(h) of the Act, that a notice and shall remain in effect until be directed to: Mark Murray-Brown, ministerial error was made in our publication of the final results of the National Marine Fisheries Service, margin calculation for Erbosan. For a next administrative review. Highly Migratory Species Division, One detailed discussion and the This notice also serves as a final Blackburn Dr., Gloucester, MA 01930– Department’s analysis, see reminder to importers of their 2298, (508) 281–9208. Memorandum from Case Analysts to responsibility under 19 CFR 353.26 to SUPPLEMENTARY INFORMATION: Richard W. Moreland, dated April 7, file a certificate regarding the I. Abstract 1997. In accordance with 19 CFR reimbursement of antidumping duties 353.28(c), we are amending the final prior to liquidation of the relevant The purpose of the collection of results of the administrative review of entries during this review period. information is to comply with the steel pipe and tube from Turkey to Failure to comply with this requirement United States’ obligations under the correct this ministerial error. could result in the Secretary’s Atlantic Tunas Convention Act. The Act presumption that reimbursement of requires the Secretary of Commerce to Scope of the Review antidumping duties occurred and the promulgate regulations adopted by the Imports covered by this review are subsequent assessment of double International Commission for the shipments of certain welded carbon antidumping duties. Conservation of Atlantic Tunas (ICCAT). steel pipe and tube products with an This notice also is the only reminder As a member of ICCAT, the United outside diameter of 0.375 inch or more to parties subject to administrative States is required to take part in the but not over 16 inches, of any wall protective order (APO) of their collection of biological statistics for thickness. These products are currently responsibility concerning the return or research purposes. These actions classifiable under the following destruction of proprietary information include a requirement for a completed, Harmonized Tariff Schedule of the disclosed under APO in accordance approved statistical document as a United States (HTSUS) subheadings: with 19 CFR 353.34(d). Failure to condition for lawful import, export, or 7306.30.10.00, 7306.30.50.25, comply is a violation of the APO. re-export of Pacific or Atlantic bluefin Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27015 tuna. The collection serves three DEPARTMENT OF COMMERCE Affected Public: Businesses purposes of ICCAT: (1) Provides stock (commercial fishermen). assessment and research information, National Oceanic and Atmospheric Estimated Number of Respondents: 4. (2) verifies catch monitoring programs Administration Estimated Time Per Response: 15 so as not to exceed the country quota, minutes. and (3) augments NMFS’s ability to Information Needed for Wreckfish Estimated Total Annual Burden better quantify all bluefin tuna that Share Transfer Hours: 1 hour. enter into commerce of the United ACTION: Proposed collection; comment Estimated Total Annual Cost to States. request. Public: Shareholders are charged for the administrative cost of the share transfer. II. Method of Collection SUMMARY: The Department of This annual cost is expected to be A Bluefin Tuna Statistical Document Commerce, as part of its continuing $160.00. effort to reduce paperwork and must accompany all imports or exports IV. Request for Comments of bluefin tuna. Copies must be retained respondent burden, invites the general for 2 years. In certain cases NOAA public and other Federal agencies to Comments are invited on: (a) Whether authorization can be obtained by firms take this opportunity to comment on the proposed collection of information to validate the Document in place of a proposed and/or continuing information is necessary for the proper performance government official. collections, as required by the of the functions of the agency, including Paperwork Reduction Act of 1995, whether the information shall have III. Data Public Law 104–13 (44 U.S.C. practical utility; (b) the accuracy of the 3506(c)(2)(A)). agency’s estimate of the burden OMB Number: 0648–0040. DATES: Written comments must be (including hours and cost) of the Form Number: None. submitted on or before July 15, 1997. proposed collection of information; (c) Type of Review: Regular Submission. ADDRESSES: Direct all written comments ways to enhance the quality, utility, and to Linda Engelmeier, Departmental clarity of the information to be Affected Public: Importers and collected; and (d) ways to minimize the exporters. Forms Clearance Officer, Department of Commerce, Room 5327, 14th and burden of the collection of information Estimated Number of Respondents: Constitution Avenue, NW, Washington on respondents, including through the 60. DC 20230. use of automated collection techniques or other forms of information Estimated Time Per Response: 20 FOR FURTHER INFORMATION CONTACT: technology. minutes. Requests for additional information or Comments submitted in response to copies of the information collection Estimated Total Annual Burden this notice will be summarized and/or instrument(s) and instructions should Hours: 311. included in the request for OMB be directed to Edward E. Burgess, Estimated Total Annual Cost to approval of this information collection; Southeast Regional Office, 9721 Public: $300.00. they also will become a matter of public Executive Center Drive North, St. record. IV. Request for Comments Petersburg, Florida 33702, (813) 570- 5326. Dated: May 12, 1997. Comments are invited on: (a) Whether Linda Engelmeier, SUPPLEMENTARY INFORMATION: the proposed collection of information Departmental Forms Clearance Officer, Office is necessary for the proper performance I. Abstract of Management and Organization. of the functions of the agency, including The wreckfish fishery for the South [FR Doc. 97–12946 Filed 5–15–97; 8:45 am] whether the information shall have Atlantic is managed under an Individual BILLING CODE 3510±22±P practical utility; (b) the accuracy of the Transferable Quota System. Under this agency’s estimate of the burden system fishermen are issued a share of (including hours and cost) of the the fishery and an individual annual DEPARTMENT OF COMMERCE proposed collection of information; (c) quota. Shares are issued by certificate ways to enhance the quality, utility, and National Oceanic and Atmospheric and may be bought and sold. Buying clarity of the information to be Administration and selling of shares are not completed collected; and (d) ways to minimize the until the transfer is recorded by the burden of the collection of information Economic Data for the Bering Sea/ National Marine Fisheries Service. The on respondents, including through the Aleutian Islands and Gulf of Alaska information in this collection is use of automated collection techniques Groundfish Fisheries and Alaska necessary so the National Marine or other forms of information Halibut Fisheries Fisheries Service can record the sale. technology. ACTION: Proposed collection; comment Comments submitted in response to II. Method of Collection request. this notice will be summarized and/or When shares in the wreckfish fishery included in the request for OMB are sold, information concerning the SUMMARY: The Department of approval of this information collection; sale is recorded on the back of the share Commerce, as part of its continuing they also will become a matter of public certificate and sent to the National effort to reduce paperwork and record. Marine Fisheries Service. The transfer of respondent burden, invites the general public and other Federal agencies to Dated: May 12, 1997. ownership is recorded and new share certificates issued. take this opportunity to comment on Linda Engelmeier, proposed and/or continuing information Departmental Forms Clearance Officer, Office III. Data collections, as required by the of Management and Organization. OMB Number: 0648–0262. Paperwork Reduction Act of 1995, [FR Doc. 97–12945 Filed 5–16–97; 8:45 am] Form Number: None. Public Law 104–13 (44 U.S.C. BILLING CODE 3510±22±P Type of Review: Regular Submission. 3506(c)(2)(A)). 27016 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

DATES: Written comments must be operations and the concentration of Form Number: N/A. submitted on or before July 15, 1997. ownership in this fishery mean that Type of Review: Regular Submission. ADDRESSES: Direct all written comments improved economic data for the Affected Public: Selected harvesters to Linda Engelmeier, Departmental management of this fishery is a high and processors in the Alaska groundfish Forms Clearance Officer, Department of priority for the individuals who will and halibut fisheries. Commerce, Room 5327, 14th and provide data for each of the four groups. Estimated Number of Respondents Constitution Avenue, NW, Washington This is demonstrated by the fact that the First Year: 45 in total consisting of 20 DC 20230. associations representing the four catcher vessel owners, 15 factory trawler owners, 5 mothership owners, and 5 on- FOR FURTHER INFORMATION CONTACT: groups support this data collection shore processing plant owners. Requests for additional information or effort and have volunteered to assist in proving the data. Estimated Time Per Response First copies of the information collection Year: 2 hours per catcher vessel and on instrument(s) and instructions should In each subsequent year, the data collection effort will focus on a different average 2 catcher vessels per be directed to Dave Colpo, Alaska respondent; 5 hours per factory trawler Fisheries Science Center, 7600 Sand component of the groundfish and halibut fisheries and more limited data and on average 2 vessels per Point Way N.E., Seattle, WA 98115, respondent; and 5 hours per mothership (206) 526–4251. will be collected for the previously surveyed components of these fisheries. and on-shore processor. SUPPLEMENTARY INFORMATION: The latter would be done to update the Estimated Total Annual Burden Hours First Year: 255 hours. I. Abstract models that will be used to track economic performance and to evaluate Estimated Number of Respondents in Data on cost, earnings and the economic effects of alternative Subsequent Years: 60–200. employment in Bering Sea/Aleutian management actions. This cycle of data Estimated Time Per Response in Islands (BSAI) and Gulf of Alaska (GOA) collection will result in cost, earning Subsequent Years for New Respondents: groundfish fisheries and the Alaska and employment data being available 2 hours per catcher vessel per halibut fisheries will be collected from and updated for all the components of respondent; 5 hours per processing the following four groups: (1) On-shore the groundfish and halibut fisheries. vessel or plant per respondent. processors; (2) motherships; (3) catcher/ Estimated Time Per Response in processor vessels; and (4) catcher II. Method of Collection Subsequent Years for Previous vessels. Companies associated with During the first year, data will be Respondents: 1 hour per catcher vessel these groups will be surveyed for cost, collected from a sample of the owners per respondent; 2 hours per processing earnings and employment data. In and operators of catcher vessels and vessel or plant per respondent. general, questions will be asked factory trawlers that participate in the Estimated Total Annual Burden concerning ex-vessel and wholesale BSAI pollock fishery and from the Hours Subsequent Years: 400–600 prices and revenue, variable and fixed owners of each of the principal on-shore hours. Estimated Total Annual Cost to costs, dependence on the fisheries, and processing plants and motherships that Public: $0. Respondents will not be fishery employment. During the first participate in the BSAI pollock fishery. required to purchase equipment or year of this data collection program, The data are expected to be collected materials to respond to this survey. data will be collected for the BSAI principally by NMFS economists unless pollock fishery. The BSAI pollock funding becomes available to collect IV. Request for Comments fishery data are expected to be used for some of the data under contract. Comments are invited on: (a) Whether the following three purposes: (1) To Questionnaires will be mailed to the the proposed collection of information evaluate methods for collecting cost, selected members of each of the four is necessary for the proper performance earnings and employment data on an survey groups and in many cases those of the functions of the agency, including ongoing basis for the Alaska groundfish individuals will be interviewed to whether the information shall have and halibut fisheries in order to better ensure the clarity of their responses. To practical utility; (b) the accuracy of the assess inter-annual changes in the the extent practicable, the data collected agency’s estimate of the burden economic performance of the fishery will consist of data that the respondents (including hours and cost) of the and the effects of alternative maintain for their own business proposed collection of information; (c) management measures; (2) to allow the purposes. Therefore, the collection ways to enhance the quality, utility, and North Pacific Fishery Management burden will consist principally of clarity of the information to be Council (Council) and the National transcribing data from their internal collected; and (d) ways to minimize the Marine Fisheries Service (NMFS) to records to the survey instrument and burden of the collection of information conduct such assessments for the BSAI participating in personal interviews. on respondents, including through the pollock fishery; and (3) to prepare the In subsequent years, a similar method use of automated collection techniques Regulatory Impact Review (E.O. 12866) will be used to collect the same types of or other forms of information and Regulatory Flexibility Act Review information from comparable groups for technology. of the BSAI pollock allocation other components of the groundfish and Comments submitted in response to alternatives that the Council and the halibut fisheries and brief this notice will be summarized and/or Secretary of Commerce will consider questionnaires will be sent to a sample included in the request for OMB before the current inshore, offshore and of previous respondents to update that approval of this information collection; CDQ allocations expire at the end of data. Current data reporting they also will become a matter of public 1998. As required by law, the requirements will be evaluated to record. confidentiality of the data will be determine if they can be modified to protected. provide improved economic data at a Dated: May 12, 1997. The ex-vessel and product value of lower cost to respondents and the Linda Engelmeier, the BSAI pollock fishery in 1995 Agency. Departmental Forms Clearance Officer, Office exceeded $250 million and $800 of Management and Organization. million, respectively. The large scale of III. Data (FR Doc. 97–12947 Filed 5–15–97; 8:45 a.m.) many of the harvesting and processing OMB Number: None. BILLING CODE 3510±22±P Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27017

COMMITTEE FOR THE Avenue, NW., Washington, DC, room 5703.20.1000 and 5703.30.0020 (Category IMPLEMENTATION OF TEXTILE 3100. 665) and 5702.99.1010 (Category 369) which AGREEMENTS In the letter published below, the have been produced by hand knotting, hand Chairman of CITA directs the weaving, hand tufting or hand needlepoint, Amendment of Quota and Visa Commissioner of Customs to amend the and which contain a design produced Requirements to Include a New existing quota and visa requirements for through the use of yarns of different colors or through carving the face of the floor Exempt Certification Arrangement for textile products, produced or Chinese Floor Coverings Produced or covering. manufactured in China and exported on Chinese floor coverings in the Manufactured in the People's Republic and after April 1, 1997. aforementioned HTS numbers in Categories of China A description of the textile and 369, 465 and 665, produced or manufactured apparel categories in terms of HTS May 13, 1997. in China and exported on and after April 1, numbers is available in the 1997 shall be exempt from quota and visa AGENCY: Committee for the CORRELATION: Textile and Apparel requirements and an ELVIS transmission for Implementation of Textile Agreements Categories with the Harmonized Tariff entry if properly certified by the Government (CITA). Schedule of the United States (see of the People’s Republic of China. ACTION: Issuing a directive to the Federal Register notice 61 FR 66263, An exempt certification must accompany Commissioner of Customs amending published on December 17, 1996). Also each commercial shipment for the quota and visa requirements. see 62 59 FR 6950, published on aforementioned textile products. An original rectangular-stamped marking in blue ink February 14, 1997; and 62 FR 15465, EFFECTIVE DATE: May 13, 1997. must appear on the front of the original published on April 1, 1997. FOR FURTHER INFORMATION CONTACT: commercial invoice. The original copy of the Interested persons are advised to take invoice with the original exempt certification Janet Heinzen, International Trade all necessary steps to ensure that textile Specialist, Office of Textiles and will be required to enter the shipment into products that are entered into the the United States. Duplicate copies of the Apparel, U.S. Department of Commerce, United States for consumption, or invoice and/or the exempt certification may (202) 482–4212. withdrawn from warehouse for not be used. SUPPLEMENTARY INFORMATION: consumption, will meet the exempt Each exempt certification stamp shall Authority: Executive Order 11651 of March certification requirements set forth in include the certificate number, exempt item 3, 1972, as amended; section 204 of the the letter published below to the in by the shipment, quantity, date of Agricultural Act of 1956, as amended (7 Commissioner of Customs. issuance, signature of the issuing official and U.S.C. 1854). name and code of the issuing authority. D. Michael Hutchinson, An exempt certification should be issued In a Memorandum of Understanding Acting Chairman, Committee for the prior to the exportation of the shipment. dated February 1, 1997, the Implementation of Textile Agreements. Should a shipment be accompanied by a Governments of the United States and Committee for the Implementation of Textile certification that is incorrect (i.e., the date of the People’s Republic of China agreed to Agreements issuance, signature or other information is a new exempt certification arrangement May 13, 1997. missing, or illegible) then the correct exempt certificate is required prior to the release of for Chinese floor coverings in HTS Commissioner of Customs, the goods. numbers 5701.10.1600, 5701.10.4000, Department of the Treasury, Washington, DC If the product does not meet the conditions 5701.10.9000, 5702.10.9010, 20229. 5702.51.2000, 5702.91.3000, described above (e.g., the product is Dear Commissioner: This directive misdescribed or misclassified), the exempt 5703.10.0020, 5705.00.2005 (Category amends, but does not cancel, the directive certification is unacceptable (i.e., the 465); 5703.20.1000, 5703.30.0020 issued to you on March 27, 1997, by the signature is crossed out or altered in any way (Category 665) and 5702.99.1010 Chairman, Committee for the Implementation or other information is altered), or the (Category 369) which have been of Textile Agreements, that directed you to commodity is exported without an exempt produced by hand knotting, hand prohibit entry of certain silk apparel, cotton, certificate, then a visa and an ELVIS weaving, hand tufting or hand wool, man-made fiber, silk blend and other transmission should be submitted prior to the vegetable fiber textiles and textile products, release of any portion of the shipment by the needlepoint, and which contain a produced or manufactured in China for U.S. Customs Service and the merchandise design produced through the use of which the Government of the People’s shall be subject to existing quota yarns of different colors or through Republic of China has not issued an requirements. If a visa and ELVIS carving the face of the floor covering. appropriate export visa and ELVIS transmission are not submitted, then the Chinese floor coverings in the (Electronic Visa Information System) goods will be denied entry. aforementioned HTS numbers, transmission. An invoice may cover visaed merchandise produced or manufactured in China and Also, this directive amends, but does not cancel, the February 10, 1997 directive that or exempt certified merchandise, but not exported on and after April 1, 1997 shall both. be exempt from levels of restraint, visa concerns imports of certain silk apparel, cotton, wool, man-made fiber, silk blend and A facsimile of the exempt certification requirements and an ELVIS (Electronic other vegetable fiber textiles and textile stamp is enclosed. Visa Information System) transmission. products, produced or manufactured in The actions taken concerning the If the commodity is exported on and China and exported during the twelve-month Government of the People’s Republic of after April 1, 1997 without an exempt period beginning on January 1, 1997 and China with respect to imports of textiles and certificate, then a visa and ELVIS extending through December 31, 1997. textile products in the foregoing categories transmission are required prior to the Effective on May 13, 1997, you are have been determined by the Committee for release of any portion of the shipment directed, pursuant to a Memorandum of the Implementation of Textile Agreements to by the U.S. Customs Service. If a visa Understanding dated February 1, 1997, involve foreign affairs functions of the United States. Therefore, these directions to the and an ELVIS transmission are not between the Governments of the United States and the People’s Republic of China, to Commissioner of Customs, which are submitted, then the goods will be establish a new exempt certification necessary for the implementation of such denied entry. arrangement for Chinese floor coverings in actions, fall within the foreign affairs A facsimile of the exempt certification 5701.10.1600, 5701.10.4000, 5701.10.9000, exception to the rulemaking provisions of 5 stamp is on file at the U.S. Department 5702.10.9010, 5702.51.2000, 5702.91.3000, U.S.C. 553(a)(1). This letter will be published of Commerce, 14th and Constitution 5703.10.0020, 5705.00.2005 (Category 465); in the Federal Register. 27018 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Sincerely, Dated: May 13, 1997. Dated May 13, 1997. D. Michael Hutchinson, L.M. Bynum, L. M. Bynum, Acting Chairman, Committee for the Alternate OSD Federal Register Liaison Alternate OSD Federal Register Liaison Implementation of Textile Agreements. Officer, Department of Defense. Officer, Department of Defense. [FR Doc. 97–12927 Filed 5–16–97; 8:45 am] [FR Doc. 97–12865 Filed 5–15–97; 8:45 am] [FR Doc. 97–12866 Filed 5–15–97; 8:45 am] BILLING CODE 3510±DR±F BILLING CODE 5000±04±M BILLING CODE 5000±04±M

DEPARTMENT OF DEFENSE DEPARTMENT OF DEFENSE DEPARTMENT OF DEFENSE Office of the Secretary of Defense Office of the Secretary of Defense Office of the Secretary of Defense Meeting of the DOD Advisory Group on Meeting of the DOD Advisory Group on Meeting of the DOD Advisory Group on Electron Devices Electron Devices Electron Devices AGENCY: Department of Defense, AGENCY: Department of Defense, Advisory Group on Electron Devices. AGENCY: Department of Defense, Advisory Group on Electron Devices. ACTION: Notice. Advisory Group on Electron Devices. ACTION: Notice. ACTION: Notice. SUMMARY: Working Group A (Microwave SUMMARY: Working Group C (Electro- Devices) of the DoD Advisory Group on SUMMARY: The DoD Advisory Group on Optics) of the DoD Advisory Group on Electron Devices (AGED) announces a Electron Devices (AGED) announces a Electron Devices (AGED) announces a closed session meeting. closed session meeting. closed session meeting. DATES: The meeting will be held at DATES: The meeting will be held at 0900, Tuesday, June 3, 1997. DATES: The meeting will be held at 0900, Wednesday and Thursday, May ADDRESSES: The meeting will be held at 0900, Friday, June 6, 1997. 28–29, 1997. Palisades Institute for Research ADDRESSES: The meeting will be held at ADDRESSES: The meeting will be held at Services, 1745 Jefferson Davis Highway, Palisades Institute for Research Naval Command, Control and Ocean Suite 500, Arlington, VA 22202. Services, 1745 Jefferson Davis Highway, Surveillance Center (NCCOSC), RDT&E FOR FURTHER INFORMATION CONTACT: Eric Suite 500, Arlington, VA 22202. Division/NRaD topside, Building A–33, Carr, AGED Secretariat, 1745 Jefferson FOR FURTHER INFORMATION CONTACT: Mr. Cloud Room, 53560 Silvergate Avenue, Davis Highway, Crystal Square Four, San Diego, CA 95152. Eliot Cohen, AGED Secretariat, 1745 Suite 500, Arlington, Virginia 22202. Jefferson Davis Highway, Crystal Square FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: The Four, Suite 500, Arlington, Virginia Elise Rabin, AGED Secretariat, 1745 mission of the Advisory Group is to 22202. Jefferson Davis Highway, Crystal Square provide advice to the Under Secretary of Four, Suite 500, Arlington, Virginia Defense for Acquisition and SUPPLEMENTARY INFORMATION: The 22202. Technology, to the Director of Defense mission of the Advisory Group is to SUPPLEMENTARY INFORMATION: The Research and Engineering (DDR&E), and provide advice to the Under Secretary of mission of the Advisory Group is to through the DDR&E to the Director, Defense for Acquisition and provide advice to the Under Secretary of Defense Advanced Research Projects Technology, to the Director of Defense Defense for Acquisition and Agency (ARPA) and the Military Research and Engineering (DDR&E), and Technology, to the Director of Defense Departments in planning and managing through the DDR&E to the Director, Research and Engineering (DDR&E), and an effective and economical research Defense Advanced Research Projects through the DDR&E to the Director, and development program in the area of Agency and the Military Departments in Defense Advanced Research Projects electron devices. planning and managing an effective and Agency and the Military Departments in The Working Group A meeting will be economical research and development planning and managing an effective and limited to review of research and program in the area of electron devices. economical research and development development programs which the The AGED meeting will be limited to program in the area of electron devices. Military Departments propose to initiate review of research and development The Working Group C meeting will be with industry, universities or in their programs which the Military limited to review of research and laboratories. This microwave device Departments propose to initiate with development programs which the area includes programs on industry, universities or in their developments and research related to Military Departments propose to initiate laboratories. The agenda for this with industry, universities or in their microwave tubes, solid state microwave meeting will include programs on laboratories. This opto-electronic device devices, electronic warfare devices, Radiation Hardened Devices, area includes such programs as imaging millimeter wave devices, and passive Microwave Tubes, Displays and Lasers. device, infrared detectors and lasers. devices. The review will include details The review will include details of The review will include details of of classified defense programs classified defense programs throughout. classified defense programs throughout. throughout. In accordance with Section 10(d) of In accordance with Section 10(d) of In accordance with Section 10(d) of Pub. L. No. 92–463, as amended, (5 Public Law 92–463, as amended, (5 Public Law 92–463, as amended, (5 U.S.C. App. Section 10(d)(1994)), it has U.S.C. App. section 10(d) (1994)), it has U.S.C. App. section 10(d)(1994)), it has been determined that this Advisory been determined that this Advisory been determined that this Advisory Group meeting concerns matters listed Group meeting concerns matters listed Group meeting concerns matters listed in 5 U.S.C. 552b(c)(1)(1994), and that in 5 U.S.C. 552b(c)(1) (1994), and that in 5 U.S.C. 552b(c)(1)(1994), and that accordingly, this meting will be closed accordingly, this meeting will be closed accordingly, this meeting will be closed to the public. to the public. to the public. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27019

Dated: May 13, 1997. Dated: May 13, 1997. DEPARTMENT OF ENERGY L.M. Bynum, L. M. Bynum, Alternate, OSD Federal Register Liaison Alternate OSD Federal Register Liaison Federal Energy Regulatory Officer, Department of Defense. Officer, Department of Defense. Commission [FR Doc. 97–12870 Filed 5–15–97; 8:45 am] [FR Doc. 97–12872 Filed 5–15–97; 8:45 am] [Docket No. RP97±61±005] BILLING CODE 5000±04±M BILLING CODE 5000±01±M NorAm Gas Transmission Company; Notice of Proposed Changes in FERC DEPARTMENT OF DEFENSE Gas Tariff DEPARTMENT OF ENERGY Office of the Secretary of Defense May 12, 1997. Federal Energy Regulatory Take notice that on May 7, 1997, Meeting of the DOD Advisory Group on Commission NorAm Gas Transmission Company Electron Devices (NGT) tendered for filing as part of its FERC Gas Tariff, Fourth Revised AGENCY: Department of Defense, [Docket No. RP97±197±002] Volume No. 1, the tariff sheets listed on Advisory Group on Electron Devices. Chandeleur Pipe Line Company; Appendix A to the filing, to be effective ACTION: Notice. Notice of Compliance Filing May 1, 1997. NGT states that the purpose of this filing is to comply with the Order on SUMMARY: Working Group B May 12, 1997. (Microelectronics) of the DoD Advisory Rehearing and on Second Compliance Take notice that on May 5, 1997, Filing issued by the Commission on Group on Electron Devices (AGED) Chandeleur Pipe Line Company announces a closed session meeting. April 22, 1997. Such Order required (Chandeleur) tendered for filing as part NGT to file revised tariff sheets DATES: The meeting will be held at of its FERC Gas Tariff, Pro Forma implementing the provisions thereof no 0900, Thursday, June 5, 1997. Second Revised Volume No. 1, the later than fifteen (15) days after the revised tariff sheets set forth in issuance of the Order. ADDRESSES: The meeting will be held at Appendix A to the filing, in compliance Any person desiring to protest this Palisades Institute for Research with the Commission’s Order No. 587– filing should file a protest with the Services, 1745 Jefferson Davis Highway, C and the Commission’s March 4, 1997 Federal Energy Regulatory Commission, Suite 500, Arlington, VA 22202. Order in this docket, to become effective 888 First Street, N.E., Washington, D.C. FOR FURTHER INFORMATION CONTACT: November 1, 1997. 20426, in accordance with Section Timothy Doyle, AGED Secretariat, 1745 Chandeleur states that it is also filing 385.211 of the Commission’s Rules of Jefferson Davis Highway, Crystal Square Tariff Sheet Nos. 44, 47 and 52 to Practice and Procedure. All such Four, Suite 500, Arlington, Virginia correct grammatical errors, to become protests should be filed as provided in 22202. effective June 1, 1997. Section 154.210 of the Commission’s Regulations. Protests will be considered SUPPLEMENTARY INFORMATION: The Chandeleur states that it is serving by the Commission in determining the mission of the Advisory Group is to copies of the filing to its customers, appropriate action to be taken, but will provide advice to the Under Secretary of State Commissions, and interested not serve to make protestants parties to Defense for Acquisition and parties. the proceeding. Copies of this filing are Technology, to the Director Defense on file with the Commission and are Research and Engineering (DDR&E), and Any person desiring to protest this available for public inspection in the through the DDR&E, to the Director filing should file a protest with the Public Reference Room. Defense Advanced Research Projects Federal Energy Regulatory Commission, Agency and the Military Departments in 888 First Street, NE, Washington, D.C. Lois D. Cashell, planning and managing an effective 20426, in accordance with Section Secretary. research and development program in 385.211 of the Commission’s Rules and [FR Doc. 97–12830 Filed 5–15–97; 8:45 am] field of electron devices. Regulations. All such protests must be BILLING CODE 6717±01±M The Working Group B meeting will be filed in accordance with Section 154.210 of the Commission’s limited to view of research and DEPARTMENT OF ENERGY development programs which the Regulations. Protests will be considered military proposes to initiate with by the Commission in determining the Federal Energy Regulatory industry, universities or in their appropriate action to be taken, but will Commission laboratories. The microelectronics area not serve to make protestants parties to includes such programs on the proceeding. Copies of this filing are [Docket No. PR97±4±000] semiconductor materials, integrated on file with the Commission and are circuits, charge coupled devices and available for public inspection in the Pontchartrain Natural Gas System; memories. The review will include Public Reference Room. Notice of Petition for Rate Approval classified program details throughout. Lois D. Cashell, May 12, 1997. In accordance with Section 10(d) of Secretary. Take notice that on February 7, 1997, Public Law 92–463, as amended, (5 [FR Doc. 97–12833 Filed 5–15–97; 8:45 am] Pontchartrain Natural Gas System U.S.C. App. section 10(d) (1994)), it has BILLING CODE 6717±01±M (Pontchartrain) filed pursuant to Section been determined that this Advisory 284.123(b)(2) of the Commission’s Group meeting concerns matters listed Regulations, a petition for rate approval in 5 U.S.C. 552b(c)(1) (1994), and that requesting that the Commission approve accordingly, this meeting will be closed as fair and equitable, market-based rates to the public. for storage services performed under 27020 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices section 311(a)(2) of the Natural Gas Gas Tariff, Third Revised Volume No. 1, in Docket No. CP82–268–000; and (3) its Policy Act of 1978 (NGPA). certain tariff sheets to be effective May section 7(f) service determination, Pontchartrain states that it is a 1, 1997. issued to Western’s predecessor— Hinshaw Pipeline that operates wholly Stingray states that the purpose of the Kansas Power and Light Company in within the State of Louisiana and that it filing is to comply with the Federal Docket No. CP89–485. ONEOK and WAI was issued a blanket certificate under Energy Regulatory Commission’s order request a certificate authorizing section 284.224 on August 13, 1985. issued on April 18, 1997 in Docket Nos. ONEOK/WAI to: (1) Acquire Western’s Pontchartrain provides storage service RP97–68–001, et al. limited jurisdiction certificate; (2) from a salt dome storage cavern it Stingray states that copies of the filing acquire Western’s blanket certificate operates near Napoleonville, have been served on its jurisdictional authorization; (3) acquire Western’s Assumption Parish, Louisiana. customers, interested state certificate authorizing its service area Pontchartrain states that the cavern is commissions, and all parties set out on designation, i.e., Western’s section 7(f) being leased from Shell Oil Company the official services list at Docket No. service determination; and (4) perform under a long term lease. Pontchartrain RP97–68. the transportation, exchange, and other states that it currently provides Section Any person desiring to protest said services previously performed by 311 storage service to Shell Gas Services filing should file a protest with the Western, all as more fully set forth in Company (Shell) under a contract that Federal Energy Regulatory Commission, the application, which is on file with became effective November 9, 1992 and 888 First Street, N.E., Washington, D.C. the Commission and open to public will terminate in 2012. Pontchartrain 20426, in accordance with Section inspection. states that Shell is its only Section 311 385.211 of the Commission’s Rules and According to the Applicants, Western storage customer and no other capacity Regulations. All such protests must be is a local distribution company that is available for Section 311 service as all filed as provided in Section 154.210 of currently provides natural gas service to remaining capacity is used to serve the Commission’s Regulations. Protests customers in Cherokee County, Kansas intrastate customers. will be considered by the Commission and Ottawa County, Oklahoma, ONEOK Pursuant to section 284.123(b)(2)(ii), in determining the appropriate action to operates principally as a natural gas be taken, but will not serve to make if the Commission does not act within utility through its Oklahoma Natural protestants parties to the proceeding. 150 days of the filing date, the market- Gas Company division, which serves Copies of this filing are on file with the based negotiated rates for storage customers in Oklahoma, and WAI will Commission and are available for public services will be deemed to be fair and be formed prior to the proposed transfer inspection in the Public Reference equitable and not in excess of an transaction, as a corporation and Room. amount which interstate pipelines wholly-owned subsidiary of Western, would be permitted to charge for similar Lois D. Cashell, qualified to do business in Kansas. service. The Commission may, prior to Secretary. The Applicants state that after the the expiration of the 150-day period, [FR Doc. 97–12831 Filed 5–15–97; 8:45 am] transfer transaction, ONEOK/WAI will extend the time for action or institute a BILLING CODE 6717±01±M be comprised of Western’s existing gas proceeding to afford parties an operations in Cherokee County, Kansas opportunity for written comments and and Ottawa County, Oklahoma and all for the oral presentation of views, data, DEPARTMENT OF ENERGY of ONEOK’s operations. The Applicants and arguments. further assert that no change in gas Any person desiring to participate in Federal Energy Regulatory business operations will occur at this this rate proceeding must file a motion Commission time. to intervene in accordance with [Docket No. CP97±487±000] Sections 385.211 and 385.214 of the The Transfer Transaction Commission’s Rules of Practice and Western Resources, Inc.; ONEOK, Inc., Western and ONEOK have entered Procedures. All motions must be filed and WAI, Inc.; Notice of Application to into an agreement, dated December 12, with the Secretary of the Commission Abandon Transportation and 1996, under which Western will on or before May 27, 1997. The petition Exchange Services and Application for contribute its regulated gas businesses for rate approval in on file with the Certificate Transferring Certificates, in Kansas and Oklahoma to WAI, Commission and is available for public Services, and Authorizations including Western’s stock in Westar Gas inspection. May 12, 1997. Marketing, Inc. (Western’s marketing Lois D. Cashell, subsidiary), and Western’s stock in Mid Secretary. Take notice that on May 1, 1997, Western Resources, Inc. (Western), 818 Continent Market Center, Inc. (MCMC),1 [FR Doc. 97–12829 Filed 5–15–97; 8:45 am] Kansas Avenue, Topeka, Kansas 66612, in exchange for WAI common and BILLING CODE 6717±01±M ONEOK, Inc. (ONEOK), 100 West 5th preferred stock, and the assumption (by Street, P.O. Box 871, Tulsa, Oklahoma WAI) of certain of Western’s unsecured debts. ONEOK will then merge into DEPARTMENT OF ENERGY 74103, and WAI, Inc. (WAI) jointly filed an application in Docket No. CP97–487– WAI, which (according to the Federal Energy Regulatory 000. In the application, Western Applicants) will result in the one-for- Commission requests permission and approval, one conversion of all of the outstanding pursuant to section 7(b) of the Natural ONEOK common shares of stock into [Docket No. RP97±68±004] Gas Act, to abandon/transfer: (1) Its 1 According to the Applicants, MCMC is a Stingray Pipeline Company; Notice of limited jurisdiction certificate, issued in regulated, wholly-owned subsidiary of Western that Compliance Filing Docket No. CP93–750–000, which the Commission recognized as a Hinshaw pipeline authorized the transportation of gas on in Docket No. CP95–684–000. The Applicants add May 12, 1997. a no-fee exchange basis between that MCMC operates in Kansas, providing interstate service under a blanket certificate issued in Docket Take notice that on May 5, 1997, Western and Southern Union Company, No. CP95–684–000, under which MCMC is allowed Stingray Pipeline Company (Stingray) d/b/a Missouri Gas Energy; (2) its to conduct transaction under Part 284 of the tendered for filing as part of its FERC blanket certificate authorization, issued Commission’s regulations. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27021

WAI common shares, such that the unnecessary for the Applicants to Williston Basin states that the revised ONEOK shareholders will own not less appear or be represented at the hearing. tariff sheets reflect a revision to its than 55 percent (55%) of the WAI Lois D. Cashell, current electric fuel reimbursement outstanding equity. The Applicants state Secretary. provision outlined in Section 38 of its that, immediately following the transfer [FR Doc. 97–12828 Filed 5–15–97; 8:45 am] FERC Gas Tariff, Second Revised transaction, Western will own up to 9.9 BILLING CODE 6717±01±M Volume No. 1. In implementing its percent (9.9%) of the outstanding WAI newly approved provision, Williston common stock and, together with the Basin discovered that the conversion WAI preferred stock, up to 45 percent of DEPARTMENT OF ENERGY factor proposed to be utilized to the WAI outstanding equity. The determine the level of dekatherm Federal Energy Regulatory applicants add that WAI will assume all quantities of electric power purchased is Commission of the debts of ONEOK as part of the flawed and consequently will not keep transfer transaction, and that WAI will [Docket No. RP95±136±007 the Company and its shippers whole for change its name to ONEOK, Inc. after the recovery of electric compressor fuel Williams Natural Gas Company; Notice the transfer transaction closes. costs. Williston Basin is now proposing of Report of Refunds Accordingly, the Applicants request that to simply utilize the cost of electric the Commission issue the certificate to May 12, 1997. power purchased for use in the WAI in the name of ONEOK, Inc. Take notice that on April 15, 1997, operation of its compressors as the basis Any person desiring to be heard or to Williams Natural Gas Company (WNG) for developing the appropriate make any protest with reference to said tendered for filing a refund report reimbursement rates. application should on or before June 2, pursuant to the November 27, 1997, Any person desiring to protest said 1997, file with the Federal Energy Stipulation and Agreement in Docket filing should file a protest with the No. RP95–136. Regulatory Commission, Washington, WGN states that a copy of its filing Federal Energy Regulatory Commission, DC 20426, a motion to intervene or a was served on all participants listed on 888 First Street, N.E., Washington, D.C. protest in accordance with the the service list maintained by the 20426, in accordance with Section requirements of the Commission’s Rules Commission in the docket referenced 385.211 of the Commission’s Rules and of Practice and Procedure (18 CFR above and on all of WNG’s jurisdictional Regulations. All such protests must be 385.214 or 385.211) and the Regulations customers and interested state filed in accordance with Section under the Natural Gas Act (18 CFR commissions. 154.210 of the Commission’s 157.10). All protests filed with the Any person desiring to protest said Regulations. Protests will be considered Commission will be considered by it in filing should file a protest with the by the Commission in determining the determining the appropriate action to be Federal Energy Regulatory Commission, appropriate action to be taken, but will taken but will not serve to make the 888 First Street, NE., Washington, DC not serve to make protestants parties to protestants party to the proceeding. Any 20426, in accordance with Section the proceeding. Copies of this filing are person wishing to become a party to a 385.211 of the Commission’s on file with the Commission and are proceeding or to participate as a party Regulations. All such protests should be available for public inspection in the in any hearing therein must file a filed on or before May 19, 1997. Protests Public Reference Room. will be considered by the Commission motion to intervene in accordance with Lois D. Cashell, the Commission’s Rules. in determining the appropriate action to be taken, but will not serve to make Secretary. Take further notice that, pursuant to protestants parties to the proceedings. [FR Doc. 97–12834 Filed 5–15–97; 8:45 am] the authority contained in and subject to Copies of this filing are on file with the BILLING CODE 6717±01±M the jurisdiction conferred upon the Commission and are available for public Federal Energy Regulatory Commission inspection. by Sections 7 and 15 of the Natural Gas Lois D. Cashell, DEPARTMENT OF ENERGY Act and the Commission’s Rules of Secretary. Office of Hearings and Appeals Practice and Procedure, a hearing will [FR Doc. 97–12832 Filed 5–15–97; 8:45 am] be held without further notice before the BILLING CODE 6717±01±M Cases Filed During the Week of April Commission or its designee on this 7 Through April 11, 1997 application, if no motion to intervene is filed within the time required herein, or DEPARTMENT OF ENERGY During the Week of April 7 through if the Commission on its own review of April 11, 1997, the appeals, the matter finds that permission and Federal Energy Regulatory applications, petitions or other requests approval for the proposed abandonment Commission listed in this Notice were filed with the and a grant of the requested certificate [Docket No. RP97±215±002] Office of Hearings and Appeals of the are required by the public convenience Department of Energy. and necessity. If a motion for leave to Williston Basin Interstate Pipeline intervene is timely filed, or if the Company; Notice of Compliance Filing Any person who will be aggrieved by the DOE action sought in any of these Commission on its own motion believes May 12, 1997. that a formal hearing is required, further cases may file written comments on the Take notice that on May 7, 1997, application within ten days of notice of such hearing will be duly Williston Basin Interstate Pipeline publication of this Notice or the date of given. Company (Williston Basin), tendered for receipt of actual notice, whichever Under the procedure herein provided filing as part of its FERC Gas Tariff, occurs first. All such comments shall be for, unless otherwise advised, it will be Second Revised Volume No. 1 the revised tariff sheets to the filing, to filed with the Office of Hearings and become effective February 1, 1997. 27022 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Appeals, Department of Energy, Dated: May 7, 1997. Washington, D.C. 20585–0107. George B. Breznay, Director, Office of Hearings and Appeals.

LIST OF CASES RECEIVED BY THE OFFICE OF HEARINGS AND APPEALS [Week of April 7 Through April 11, 1997]

Date Name and location of applicant Case no. Type of submission

4/7/97 ...... Alfred G. Bell, Oak Ridge, Tennessee ...... VFA±0286 Appeal of an Information Request Denial. If Granted: The March 24, 1997 Freedom of Information Request Denial issued by Oak Ridge Operations Office would be re- scinded, and Alfred G. Bell would receive access to cer- tain DOE information.

[FR Doc. 97–12867 Filed 5–15–97; 8:45 am] petitions or other requests listed in this Appeals, Department of Energy, BILLING CODE 6450±01±P Notice were filed with the Office of Washington, D.C. 20585–0107. Hearings and Appeals of the Department Dated: May 7, 1997. of Energy. DEPARTMENT OF ENERGY Any person who will be aggrieved by George B. Breznay, the DOE action sought in any of these Director, Office of Hearings and Appeals. Office of Hearings and Appeals cases may file written comments on the Cases Filed During the Week of March application within ten days of 31 Through April 4, 1997 publication of this Notice or the date of receipt of actual notice, whichever During the Week of March 31 through occurs first. All such comments shall be April 4, 1997, the appeals, applications, filed with the Office of Hearings and

LIST OF CASES RECEIVED BY THE OFFICE OF HEARINGS AND APPEALS [Week of March 31 through April 4, 1997]

Date Name and location of applicant Case No. Type of submission

Dec. 2, 1996 ...... Florence County Cooperative, Stephen- RR272±290 Request for modification/rescission in the Crude Oil Refund son, Michigan. Proceeding. If granted: The November 20, 1996 Dismissal Case No. RG272±730 issued to Florence County Coopera- tive would be modified regarding the firm's application for refund submitted in the Crude Oil refund proceeding. March 31, 1997 ...... National Steel Corp., Pittsburgh, Penn- VEG±0003 Petition for special redress. If granted: The Office of Hearings sylvania. and Appeals would review the National Steel Corp. request for a Crude Oil refund...... Personnel Security Hearing ...... VSO±0150 Request for hearing under 10 CFR part 710. If granted: An individual employed by the Department of Energy would re- ceive a hearing under 10 CFR Part 710...... Personnel Security Hearing ...... VSO±0151 Request for hearing under 10 CFR part 710. If granted: An individual employed by the Department of Energy would re- ceive a hearing under 10 CFR Part 710. Apr. 1, 1997 ...... Personnel Security Review ...... VSA±0114 Request for review of opinion under 10 CFR part 710. If granted: The March 5, 1997 Opinion of the Office of Hear- ings and Appeals in Case No. VSO±0114 would be re- viewed at the request of an individual employed by the De- partment of Energy. Apr. 2, 1997 ...... Personnel Security Hearing ...... VSO±0152 Request for hearing under 10 CFR part 710. If granted: An individual employed by the Department of Energy would re- ceive a hearing under 10 CFR Part 710. Apr. 3, 1997 ...... Burns Concrete, Inc., Idaho Falls, Idaho VFA±0284 Appeal of an information request denial. If granted: The Janu- ary 30, 1997 Freedom of Information Request Denial is- sued by the Pittsburgh Naval Reactors Office would be re- scinded, and Burns Concrete, Inc. would receive access to certain Doe information. Apr. 4, 1997 ...... Natural Resources Defense Council, VFA±0285 Appeal of an information request denial. If granted: The Washington, D.C.. March 19, 1997 Freedom of Information Request Denial is- sued by the Office of the Executive Secretariat would be rescinded, and Natural Resources Defense Council would receive access to certain DOE information. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27023

[FR Doc. 97–12869 Filed 5–15–97; 8:45 am] Forrestal Building, 1000 Independence Edris Oil Service, Inc. filed an BILLING CODE 6450±01±P Avenue, SW, Washington, D.C. 20585– Application for Exception from the 0107, Monday through Friday, between Energy Information Administration the hours of 1:00 p.m. and 5:00 p.m., requirement that it file form EIA–782B, DEPARTMENT OF ENERGY except federal holidays. They are also the ‘‘Resellers’/Retailers’’ Monthly available in Energy Management: Office of Hearings and Appeals Petroleum Product Sales Report.’’ In Federal Energy Guidelines, a considering Edris’s request, the DOE Issuance of Decisions and Orders; commercially published loose leaf found that the firm was not Week of April 7 Through April 11, 1997 reporter system. Some decisions and experiencing a serious hardship or gross orders are available on the Office of inequity. Accordingly, exception relief During the week of April 7 through Hearings and Appeals World Wide Web was denied. April 11, 1997, the decisions and orders site at http://www.oha.doe.gov. summarized below were issued with Dated: May 7, 1997. Refund Applications respect to appeals, applications, George B. Breznay, petitions, or other requests filed with The Office of Hearings and Appeals the Office of Hearings and Appeals of Director, Office of Hearings and Appeals. issued the following Decisions and the Department of Energy. The Decision List No. 28 Orders concerning refund applications, following summary also contains a list which are not summarized. Copies of of submissions that were dismissed by Week of April 7 Through April 11, 1997 the full texts of the Decisions and the Office of Hearings and Appeals. Appeals Orders are available in the Public Copies of the full text of these Reference Room of the Office of Request for Exception decisions and orders are available in the Hearings and Appeals. Public Reference Room of the Office of Edris Oil Service, Inc., 4/9/97, VEE– Hearings and Appeals, Room 1E–234, 0042 Catalano Bros., Inc. et al ...... RF272–98700 4/10/97 Crude Oil Suppple Ref Dist ...... RB272–00106 4/9/97 James Freddie Grahlerr et al ...... RK272–02010 4/9/97 Metropolitan Petroleum Co./JM Pontiac ...... RF349–22 4/9/97 State of North Carolina ...... RK272–04041 4/9/97 Sunnyvale Elementary et al ...... RF272–80624 4/10/97 Wilson Johncox et al ...... RK272–4143 4/9/97

Dismissals The following submissions were dismissed.

Name Case No.

C.H. Leavins Gulf Service ...... RF272±84021 JM Family Enterprises, Inc ...... RF349±23 Manor Towers Owners Corp ...... RK272±3968 Natural Resources Def. Council ...... VFA±0285 Personnel Security Hearing ...... VSO±0131

[FR Doc. 97–12868 Filed 5–15–97; 8:45 am] agreement concerning litigation such consent is inappropriate, BILLING CODE 6450±01±P instituted against the Environmental improper, inadequate, or inconsistent Protection Agency (‘‘EPA’’) by the with the requirements of the Act. Arizona Center for Law in the Public Copies of the settlement agreement Interest. The lawsuit concerns EPA’s are available from Phyllis Cochran, Air ENVIRONMENTAL PROTECTION alleged failure to perform a AGENCY nondiscretionary duty with respect to and Radiation Division (2344), Office of General counsel, U.S. Environmental [FRL±5826±7] promulgating a federal implementation plan (‘‘FIP’’) to reduce volatile organic Protection Agency, 401 M Street, SW, Washington, D.C. 20460, (202) 260– Proposed Settlement Agreement; compound (‘‘VOC’’) emissions by fifteen Ozone Nonattainment Areas; 15% VOC percent [15%] from 1990 levels, under 7606. Written comments should be sent FIP for Phoenix, AZ Act section 182(b)(1), in the Phoenix, to Howard J. Hoffman at the above AZ ozone nonattainment area. address and must be submitted on or AGENCY: Enviromental Protection For a period of thirty [30] days before June 16, 1997. Agency (EPA). following the date of publication of this Dated: May 12, 1997. notice, the Agency will receive written ACTION: Notice of proposed settlement Scott C. Fulton, agreement. comments relating to the settlement agreement. EPA or the Department of Acting General Counsel. SUMMARY: In accordance with Section Justice may withhold or withdraw [FR Doc. 97–12916 Filed 5–15–97; 8:45 am] 113(g) of the Clean Air Act (‘‘Act’’), as consent to the proposed settlement BILLING CODE 6560±50±M amended, 42 U.S.C. 7413(g), notice is agreement if the comments disclose hereby given of a proposed settlement facts or circumstances that indicate that 27024 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

ENVIRONMENTAL PROTECTION Northeast Multispecies Fishery (FMP), Summary: EPA’s previous issues have AGENCY Fishery Management Plan, Amendment been resolved, therefore EPA had no 9, Implementation, Exclusive Economic objection to the action as proposed. [ER±FRL±5480±5] Zone, off the New England and Mid- ERP No. F–GSA–K80038–CA New San Environmental Impact Statements and Atlantic Coast. Francisco Federal Building Office Regulations; Availability of EPA Summary: EPA had no objections to Building Construction, Implementation, Comments the proposal. City and County of San Francisco, CA. ERP No. DS–AFS–L65260–WA Rating Summary: Review of the Final EIS Availability of EPA comments EO2, Taneum/Peaches Road Access was not deemed necessary. No formal prepared April 28, 1997 Through May Project, New Information, Construction comment letter was sent to the 02, 1997 pursuant to the Environmental of I–90 South Access Projects, Plum preparing agency. Review Process (ERP), under Section Creek, North and South Fork Taneum, Regulations 309 of the Clean Air Act and Section Cle Elum Ranger District, Kittitas 102(2)(c) of the National Environmental County, WA. ERP No. R–DOE–A05465–00 18 CFR Policy Act as amended. Requests for Parts 4 and 375—Regulations for the Summary: EPA expressed copies of EPA comments can be directed Relicensing of Hydroelectric Projects; environmental objections concerning to the OFFICE OF FEDERAL Notice of Proposed Rulemaking. the alternatives analysis project effects ACTIVITIES AT (202) 564–7167. An Summary: EPA supported the concept on Late-Successional Reserve and explanation of the ratings assigned to of early integration of the environmental aquatic habitat, impacts to water quality draft environmental impact statements analyses required under the National and compliance with the Clean Water (EISs) was published in FR dated April Environmental Policy Act with the pre- Act and Northwest Forest Plan. 04, 1997 (62 FR 16154). filing work currently conducted Final EISs pursuant to Federal Power Act Draft EISs requirements for the licensing of ERP No. D–AFS–E61037–TN Rating ERP No. F–AFS–K65192–CA Jaybird hydroelectric projects. Multi-Resource Project, Implementation, EC1, Upper Ocoee River Corridor Land Dated: May 13, 1997. and Water-Based Recreational Downieville Ranger District, Yuba William D. Dickerson, Development, Implementation, County, CA. Cherokee National Forest, Ocoee Ranger Summary: Review of the Final EIS Director, NEPA Compliance Division, Office of Federal Activities. District, Polk County, TN. was not deemed necessary. No formal Summary: EPA expressed comment letter was sent to the [FR Doc. 97–12936 Filed 5–15–97; 8:45 am] environmental concerns and suggests preparing agency. BILLING CODE 6560±50±U the final EIS contain specific mitigation ERP No. F–BLM–K65161–CA Caliente measures for proposed road Land and Resource Management Plan, modifications. Implementation, Kern, Tulare, King, San ENVIRONMENTAL PROTECTION ERP No. D–AFS–J65257–UT Rating Luis, Obispo, Santa Barbara and Ventura AGENCY LO, High Uintas Wilderness Forest Plan Counties, CA. [ER±FRL±5480±4] Amendment, Implementation, Ashley Summary: Review of the Final EIS and Wasatch-Cache National Forests, was not deemed necessary. No formal Environmental Impact Statements; Duchesne and Summit Counties, UT. comment letter was sent to the Notice of Availability Summary: EPA expressed lack of preparing agency. RESPONSIBLE AGENCY: Office of Federal objections. ERP No. F–COE–K35035–CA San ERP No. D–DOE–G06004–TX Rating Activities, General Information (202) Gabriel Canyon Sediment Management 564–7167 OR (202) 564–7153. EC2, Pantex Plant Continued Operation Plan, Dredging and Disposal of and Associated Storage of Nuclear Weekly receipt of Environmental Sediments, COE Section 404 Permit, Impact Statements Filed May 05, 1997 Weapon Components, Implementation, Special Use Permit and Right-of-Entry Approvals and Permits Issuance, Carson Through May 09, 1997 Pursuant to 40 Issuance, Angeles National Forest, San CFR 1506.9. County, TX. Gabriel River, Los Angeles, CA. Summary: EPA expressed EIS No. 970169, FINAL EIS, AFS, WY, environmental concerns regarding Summary: ERP No. F–FRC–L05215– ID, Targhee National Forest Plan Oil surface and groundwater impacts. EPA OR Leaburg-Walterville Hydroelectric and Gas Leasing Analysis, requested that these issues be clarified (FERC. No. 2496) Project, Issuance of Implementation, Bonneville, Butte, in the final EIS. New License (Relicense), Funding and Clark, Fremont and Madison ERP No. D–FRC–L05053–WA Rating Land Trust Acquisition, McKenzie Counties, ID and Teton County, WY, EO2, Condit Hydroelectric Project River, Lane County, OR. Due: June 16, 1997, Contact: Jerry (FERC No. 2342–005), Relicensing, Summary: EPA expressed Reese (208) 624–3151. White Salmon River, Klickitat and environmental objection to the proposed EIS No. 970170, DRAFT SUPPLEMENT, Skamania Counties, WA. action based on potential adverse FHW, CT, I–95 at New Haven Harbor Summary: EPA expressed impacts to fish and other aquatic life in Crossing (Quinnipac River Bridge) environmental objections over the the McKenzie River. EPA also expressed Updated Information for Seven continued impacts on fish and other concerns over FERC’s method of Alternatives on (Q-Bridge) Study, aquatic life in the McKenzie River due assessing impacts of the proposed Funding, COE Section 404 Permit, to project operation. EPA requested alternative. U.S. Coast Guard Bridge Permit, New additional information to provide a ERP No. F–GSA–E81037–FL 9300– Haven, East Haven, Branford, comprehensive analysis of cumulative 9499 NW 41st Street Immigration and Madison and Clinton, CT, Due: impacts and appropriately characterize Naturalization Service Facility August 01, 1997, Contact: Donald the no-action alternative. Consolidation, Development, West (860) 659–6703. ERP No. D–NOA–A91063–00 Rating Construction and Operation, Leasing, EIS No. 970171, DRAFT EIS, AFS, OR, LO, Monfish Fishery Regulations Dade County, FL. Kalmiopsis Wilderness, Approval for Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27025

Motorized Vehicular Access to the 970137. The correct date comments ENVIRONMENTAL PROTECTION Private Property within the Chetco are due back to the preparing agency AGENCY River, Illinois Valley Ranger District, is JUNE 2, 1997. [PF±735; FRL±5717±8] Siskiyou National Forest, Curry Dated: May 13, 1997. County, OR, Due: July 07, 1997, William D. Dickerson, American Cyanamid Company; Contact: Don McLennan (541) 592– Pesticide Tolerance Petition Filing 2166. Director, NEPA Compliance Division, Office EIS No. 970172, FINAL EIS, FHW, WA, of Federal Activities. AGENCY: Environmental Protection North Spokane Freeway Project, [FR Doc. 97–12937 Filed 5–15–97; 8:45 am] Agency (EPA). Improvements Transportation through BILLING CODE 6560±50±U ACTION: Notice. the City of Spokane and Spokane County between I–90, Spokane SUMMARY: This notice announces the County, WA, Due: June 16, 1997, ENVIRONMENTAL PROTECTION initial filing of a pesticide petition Contact: Gene Fong (360) 753–9480. AGENCY proposing the establishment of EIS No. 970173, DRAFT EIS, COE, WI, regulations for residues of a certain Fox River Project, Navigation System, pesticide chemical in or on various food [FRL±5826±6] Operation and Maintenance, from De commodities. DATES: Comments, identified by the Pere to Menasha; Four Harbors on National Drinking Water Advisory Lake Winnebago; Channels on the docket control number PF–735, must be Council Operator Certification Working received on or before June 16, 1997. Upper Fox River from Lake Group; Notice of Open Meeting Winnebago, WI, Due: June 30, 1997, ADDRESSES: By mail submit written comments to: Public Response and Contact: Bob King (313) 226–6766. Under Section 10(a)(2) of Public Law EIS No. 970174, DRAFT EIS, FTA, CA, Program Resources Branch, Field 92–423, ‘‘The Federal Advisory Mission Valley East Corridor Transit Operations Divison (7505C), Office of Improvement Project, between I–15 in Committee Act,’’ notice is hereby given Pesticides Programs, Environmental Mission Valley and the East County that a meeting of the Operator Protection Agency, 401 M St., SW., community of La Mesa, Funding, COE Certification Working Group of the Washington, DC 20460. In person bring Section 404 Permit, Metropolitan National Drinking Water Advisory comments to: Rm. 1132, CM #2, 1921 Transit Development Board (MTDB) Council (NDWAC) established under the Jefferson Davis Highway, Arlington, VA. and Light Rail Transit (LRT), San Safe Drinking Water Act, as amended Comments and data may also be Diego County, CA, Due: July 01, 1997, (42 U.S.C. S300f et seq.), will be held on submitted electronically by following Contact: Hymie Luden (415) 744– June 5 and 6, 1997, from 9:00 a.m. to the instructions under 3115. 5:00 p.m. at the Holiday Inn Central, ‘‘SUPPLEMENTARY INFORMATION.’’ EIS No. 970175, FINAL EIS, DOE, SC, 1501 Rhode Island Avenue, N.W., No confidential business information Savannah River Site, Shutdown of the Washington, D.C. The meeting is open should be submitted through e-mail. Information submitted as a comment River Water System (DOE/EIS– to the public to observe but due to past concerning this document may be 0268D), Implementation, Aiken, SC, experience, seating will be limited and Due: June 16, 1997, Contact: Andrew claimed confidential by marking any will be available on a first come, first part or all of that information as R. Grainger (800) 242–8269. served basis. EIS No. 970176, FINAL SUPPLEMENT, ‘‘Confidential Business Information’’ EPA, NY, New York Dredged Material The purpose of this meeting is to (CBI). CBI should not be submitted Disposal Site Designation for the discuss options to be forwarded to through e-mail. Information marked as Designation of the Historic Area NDWAC on implementation of the CBI will not be disclosed except in Remediation Site (HARS) in the New Operator Certification provisions of the accordance with procedures set forth in York Bight Apex, (a.k.a. the Mud Safe Drinking Water Act Amendments 40 CFR part 2. A copy of the comment Dump Site (MDS), NY, Due: June 30, of 1996. The working group members that does not contain CBI must be 1997, Contact: Robert W. Hargrove are meeting to gather information and submitted for inclusion in the public (212) 637–3890. analyze relevant issues and facts. record. Information not marked Statements will be taken from the public confidential may be disclosed publicly Amended Notices at this meeting as time allows. by EPA without prior notice. All written EIS No. 970015, FINAL EIS, COE, VA, comments will be available for public For more information, please contact Lower Virginia Peninsula Regional inspection in Rm. 1132 at the address Kenneth M. Hay, Designated Federal Raw Water Supply Plan, Permit given above, from 8:30 a.m. to 4 p.m., Approval, Cohoke Mill Creek, King Officer, Operator Certification Working Monday through Friday, excluding legal William County, VA , Due: July 25, Group, U.S. EPA, Office of Ground holidays. 1997, Contact: Pamela K. Painter (757) Water and Drinking Water (MC: 4606), FOR FURTHER INFORMATION CONTACT: 441–7654. Published FR—01–24–97— 401 M Street S.W., Washington, D.C. Amelia M. Acierto, Registration Support Review Period Extended. 20460. The telephone number is (202) Branch, Registration Division (7505W), EIS No. 970152, DRAFT EIS, AFS, CA, 260–5552 and the e-mail address is Office of Pesticide Programs, Canyons Project, Implementation, hay.ken @ epamail.epa.gpv. Environmental Protection Agency, 401 Truckee Ranger District, Tahoe Dated: May 8, 1997. M St., SW., Washington, DC 20460. National Forest, Sierra and Nevada Charlene Shaw, Office location, telephone number, and Counties, CA, Due: June 16, 1997, e-mail address: Rm. 4-W60, Crystal Contact: Caryn Hunter (916) 587– Designated Federal Officer; National Drinking Station #1, 2800 Jefferson Davis Water Advisory Council. 3558. Published FR—05–02–97—This Highway, Arlington, VA 22202, (703) EIS was inadvertently published in [FR Doc. 97–12917 Filed 5–15–97; 8:45 am] 308–8375; e-mail: the 05–02–97 FR. The correct Notice BILLING CODE 6560±50±P [email protected]. of Availability was published in the SUPPLEMENTARY INFORMATION: EPA has 04–18–97 FR with the EIS No. received a pesticide petition as follows 27026 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices proposing the establishment and/or summaries verbatim without editing levels are not required by EPA at this amendment of regulations for residues them in any way. The petition summary time. The favorable toxicology profile of of certain pesticide chemical in or on announces the availability of a 2,2′-(1,2-ethenediyl)bis[5-[[4-[bis(2- various food commodities under section description of the analytical methods hydroxyethyl)amino]-6-phenylamino]- 408 of the Federal Food, Drug, and available to EPA for the detection and 1,3,5-triazin-2-yl]amino]- Comestic Act (FFDCA), 21 U.S.C. 346a. measurement of the pesticide chemical benzenesulfonate and other FWAs in EPA has determined that this petition residues or an explanation of why no combination with a negligible increase contains data or information regarding such method is needed. in expected exposure from the proposed the elements set forth in section use as an inert ingredient in 408(d)(2); however, EPA has not fully American Cyanamid Company biopesticides amounts to an evaluated the sufficiency of the PP 3E4216 insignificant incremental risk to the submitted data at this time or whether public health. EPA has received a pesticide petition the data supports granting of the (PP) PP 3E4216 from American B. Toxicological Profile petition. Additional data may be needed Cyanamid Company, Agricultural before EPA rules on the petition. The petitioner notes that stilbene The official record for this notice of Research Division, P.O. Box 400, fluorescent whitening agents have been filing, as well as the public version, has Princeton, NJ, 08543–0400. The petition commercially available for nearly 60 been established for this notice of filing proposes, pursuant to section 408 of the years in the textile, paper and detergent under docket control number [PF–735] Federal Food, Drug, and Cosmetic Act industries and more recently available (including comments and data (FFDCA), 21 U.S.C. 346a, to amend 40 as FDA-approved indirect food CFR part 180 to exempt the residues of additives. Thus, an extensive body of submitted electronically as described ′ below). A public version of this record, 2,2 -(1,2-ethenediyl)bis[5-[[4-[bis(2- reliable information has been generated including printed, paper versions of hydroxyethyl)amino]-6-phenylamino]- on the toxicology of the stilbene class of electronic comments, which does not 1,3,5-triazin-2-yl]amino]- chemistry. This complete data base has include any information claimed as CBI, benzenesulfonate from the requirement been developed by industry, academia, is available for inspection from 8:30 of a tolerance when used as inert and government agencies both in the a.m. to 4 p.m., Monday through Friday, ingredient (adjuvant and UV absorber/ United States and overseas and can be excluding legal holidays. The official protectant) in pesticide formulations found in numerous publications on record is located at the address in applied to growing crops. EPA has FWAs. The petitioner provides the ‘‘ADDRESSES’’ at the beginning of this determined that the petition contains following toxicological data in support document. data or information regarding the of the submission: Electronic comments can be sent elements set forth in section 408(d)(2); The acute oral LD50 in rats for 2,2′- directly to EPA at: however, EPA has not fully evaluated (1,2-ethenediyl)bis[5-[[4-[bis(2- [email protected] the sufficiency of the submitted data at hydroxyethyl)amino]-6-phenylamino]- this time or determined whether the 1,3,5-triazin-2-yl]amino]- Electronic comments must be data supports granting of the petition. benzenesulfonate reported in the submitted as an ASCII file avoiding the Additional data may be needed before literature is 14,500 mg/kg body weight use of special characters and any form EPA rules on the petition. while the acute dermal toxicity is of encryption. Comment and data will The petitioner is proposing the reported to be > 2,000 mg/kg body also be accepted on disks in exemption from the requirement of a weight in rabbits. In a single 4 hour Wordperfect 5.1 file format or ASCII file tolerance for 2,2′-(1,2-ethenediyl)bis[5- exposure acute inhalation study with a format. All comments and data in [[4-[bis(2-hydroxyethyl)amino]-6- related stilbene, no sign of intoxication electronic form must be identified by phenylamino]-1,3,5-triazin-2-yl]amino]- or mortality to rats at a concentration of the docket number PF-735 and benzenesulfonate (CAS Reg. No. 4404– 1.65 mg/L was determined (LC50 >1.65 appropriate petition number. Electronic 43–7), a stilbene fluorescent whitening mg/L). comments on this notice may be filed agent (FWA), to be used as an inert In 2–year chronic feeding studies with online at many Federal Depository ingredient in biopesticide formulations a related FWA compound, a 40 ppm no Libraries. intended for use on food and/or feed observable adverse eEffect level crops. USDA has patented the use of [NOAEL] was established for the rat List of Subjects FWAs as adjuvants in pesticide based upon slightly increased female Environmental protection, formulations (U.S. Patent No. 5,124,149) mortality (unsupported by pathological Agricultural commodities, Food and the petitioner has submitted an findings) and a 2,000 ppm NOAEL additives, Feed additives, Pesticides and application to license this technology. (highest dose tested) was established for pests, Reporting and recordkeeping The petitioner states that FDA has the dog. Additionally, the United States requirements. previously approved the use of related Department of Health and Human ′ Dated: May 7, 1997. stilbenes (4,4 -bis(2- Services’ National Toxicology Program benzoxazolyl)stilbene, CAS Reg. No. technical report (TR 412) of 2–year James Jones, 1533–45–5; 4-(2-benzoxazolyl)-4′-(5- toxicology and carcinogenesis studies Acting Director, Registration Division, Office methyl-2-benzoxazolyl)stilbene, CAS using a related stilbene compound of Pesticide Programs. Reg. No. 5242–49–9; and 4,4′-bis(5- concluded there was no evidence of methyl-2-benzoxazolyl)stilbene, CAS carcinogenic activity attributed to the Summaries of Petitions Reg. No. 2397–00–4) as indirect food molecule when fed to rats and mice at Petitioner summaries of the pesticide additives for use in food-contact up to 25,000 ppm and 12,500 ppm, petitions are printed below as required polymers [21 CFR 178.3297]. respectively. by section 408(d)(3) of the FFDCA. The Based on a review of available data, summaries of the petitions were A. Residue Chemistry the petitioner believes that FWAs are prepared by the petitioners and The petitioner notes that the nature not genotoxic, not carcinogenic, and do represent the views of the petitioners. and magnitude of the residue and not cause reproductive or EPA is publishing the petition analytical methods to determine residue developmental effects when tested in Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27027 mammals and that there is also no (1,2-ethenediyl)bis[5-[[4-[bis(2- ‘‘SUPPLEMENTARY INFORMATION.’’ evidence to suggest that FWAs exhibit hydroxyethyl)amino]-6-phenylamino]- No confidential business information estrogenic properties. 1,3,5-triazin-2-yl]amino]- should be submitted through e-mail. benzenesulfonate and other compounds C. Aggregate Exposure Information submitted as a comment in the stilbene class of chemistry show ′ concerning this document may be The petitioner believes that 2,2 -(1,2- there is reasonable certainty that no claimed confidential by marking any ethenediyl)bis[5-[[4-[bis(2- harm to the U.S. population will result part or all of that information as hydroxyethyl)amino]-6-phenylamino]- from aggregate exposure to FWA residue ‘‘Confidential Business Information’’ 1,3,5-triazin-2-yl]amino]- including all anticipated dietary (CBI). CBI should not be submitted benzenesulfonate and stilbene FWAs in exposures and all other non- through e-mail. Information marked as general are extensively used as optical occupational exposures for which there CBI will not be disclosed except in brighteners both domestically and is reliable information. Experimental accordance with procedures set forth in internationally. Approximately 30 investigations show that the likelihood 40 CFR part 2. A copy of the comment million pounds are used annually in the of FWAs constituting a danger to human that does not contain CBI must be United States alone with the majority health is so minimal as to be completely submitted for inclusion in the public being used in detergents to enhance the negligible. record. Information not marked color of laundered clothing. Other uses The petitioner notes that there is no confidential may be disclosed publicly of stilbenes include incorporation into information available to indicate that by EPA without prior notice. All written textiles, paper, paint, and plastics (some children or infants would be more comments will be available for public of which are used in the food industry). sensitive than adults to any toxic effect inspection in Rm. 1132 at the address In comparison, the proposed use of 2,2′- ′ associated with exposure to 2,2 -(1,2- given above, from 8:30 a.m. to 4 p.m., (1,2-ethenediyl)bis[5-[[4-[bis(2- ethenediyl)bis[5-[[4-[bis(2- Monday through Friday, excluding legal hydroxyethyl)amino]-6-phenylamino]- hydroxyethyl)amino]-6-phenylamino]- holidays. 1,3,5-triazin-2-yl]amino]- 1,3,5-triazin-2-yl]amino]- benzenesulfonate as an inert ingredient benzenesulfonate. FOR FURTHER INFORMATION CONTACT: By in pesticide formulations is not mail: Jim Tompkins, Acting Product expected to exceed 250,000 pounds F. International Tolerances Manager (PM) 25, Registration Division, annually (< 1% of the total FWA use in There are no Codex maximum residue (7505C), Office of Pesticide Programs, the United States). levels established for residues of 2,2′- Environmental Protection Agency, 401 The petitioner believes that potential (1,2-ethenediyl)bis[5-[[4-[bis(2- M St., SW., Washington, DC 20460. routes of non-occupational exposure to hydroxyethyl)amino]-6-phenylamino]- Office location and telephone number: FWAs currently include non-dietary 1,3,5-triazin-2-yl]amino]- Rm. 229, CM #2, 1921 Jefferson Davis (i.e., potential dermal exposure via benzenesulfonate on food or feed crops. Highway, Arlington, VA. 22202, (703) contact with laundered clothing) and 305–5697; e-mail: [FR Doc. 97–12914 Filed 5–15–97; 8:45 am] dietary sources (i.e., potential [email protected]. BILLING CODE 6560±50±F consumption in drinking water, in fish, SUPPLEMENTARY INFORMATION: EPA has and as residue of detergents adhering to received pesticide petitions as follows dishes and cutlery) and consequently, ENVIRONMENTAL PROTECTION proposing the establishment and/or the proposed inert ingredient use of AGENCY amendment of regulations for residues 2,2′(1,2-ethenediyl)bis[5-[[4-[bis(2- [PF±733; FRL±5717±6] of certain pesticide chemicals in or on hydroxyethyl)amino]-6-phenylamino]- various food commodities under section 1,3,5-triazin-2-yl]amino]- Notice of Filing of Pesticide Petitions 408 of the Federal Food, Drug, and benzenesulfonate is not expected to Comestic Act (FFDCA), 21 U.S.C. 346a. significantly increase the aggregate AGENCY: Environmental Protection EPA has determined that these petitions exposure to FWAs. Agency (EPA). contain data or information regarding D. Cumulative Effects ACTION: Notice. the elements set forth in section 408(d)(2); however, EPA has not fully The petitioner believes that data show SUMMARY: This notice announces the that the diaminostilbene-disulfonic acid initial filing of pesticide petitions evaluated the sufficiency of the class of FWAs is relatively non-toxic to proposing the establishment of submitted data at this time or whether mammals and, in addition, the proposed regulations for residues of certain the data supports granting of the use of 2,2′-(1,2-ethenediyl)bis[5-[[4- pesticide chemicals in or on various petition. Additional data may be needed [bis(2-hydroxyethyl)amino]-6- food commodities. before EPA rules on the petition. phenylamino]-1,3,5-triazin-2-yl]amino]- DATES: Comments, identified by the The official record for this notice of benzenesulfonate, a member of this docket control number PF–733, must be filing, as well as the public version, has class of chemistry, will not significantly received on or before June 16, 1997. been established for this notice of filing increase the US population’s exposure ADDRESSES: By mail submit written under docket control number [PF–733] to FWAs. Thus, the petitioner believes comments to: Public Information and (including comments and data that there is no expectation of Records Integrity Branch, Information submitted electronically as described significant incremental risk due to the Resources and Services Division below). A public version of this record, use of 2,2′-(1,2-ethenediyl)bis[5-[[4- (7506C), Office of Pesticides Programs, including printed, paper versions of [bis(2-hydroxyethyl)amino]-6- Environmental Protection Agency, 401 electronic comments, which does not phenylamino]-1,3,5-triazin-2-yl]amino]- M St., SW., Washington, DC 20460. In include any information claimed as CBI, benzenesulfonate as an inert ingredient person bring comments to: Rm. 1132, is available for inspection from 8:30 in pesticide formulations. CM #2, 1921 Jefferson Davis Highway, a.m. to 4 p.m., Monday through Friday, Arlington, VA. excluding legal holidays. The official E. Safety Determination Comments and data may also be record is located at the address in The petitioner considered that submitted electronically by following ‘‘ADDRESSES’’ at the beginning of this toxicology studies conducted with 2,2′- the instructions under document. 27028 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Electronic comments can be sent apricots, cherries (sweet and sour), of residue during the first 30 days of directly to EPA at: nectarines, and peaches are similar. frozen storage. [email protected] Analytical methods for detecting levels B. Toxicological Profile of sethoxydim and its metabolites in or Electronic comments must be on food with a limit of detection that 1. Acute toxicity testing. Based on the submitted as an ASCII file avoiding the allows monitoring of food with residues available acute toxicity data, use of special characters and any form at or above the levels set in these sethoxydim does not pose any acute of encryption. Comment and data will tolerances was submitted to EPA. dietary risks. A summary of the acute also be accepted on disks in 2. Analytical method. The proposed toxicity studies follows. Wordperfect 5.1 file format or ASCII file analytical method involves extraction, i. Acute oral toxicity, rat: Toxicity format. All comments and data in partition, and clean-up. Samples are Category III; LD50=3,125 mg/kg (male), electronic form must be identified by then analyzed by gas chromatography 2,676 mg/kg (female). the docket number [PF–733] and with sulfur-specific flame photometric ii. Acute dermal toxicity, rat: Toxicity appropriate petition number. Electronic detection. The limit of quantitation is Category III; LD50>5,000 mg/kg (male comments on this notice may be filed 0.05 ppm. and female). online at many Federal Depository 3. Magnitude of the residues. Peach iii. Acute inhalation toxicity, rat: Libraries. samples from eleven trials in six states Toxicity Category III; LC50 (4-hour)=6.03 (CA, GA, SC, NJ, WA, WV) were mg/L (male), 6.28 mg/L (female). List of Subjects iv. Primary eye irritation, rabbit: analyzed for residues of sethoxydim and Toxicity Category IV; no irritation. Environmental protection, its metabolites. In none of the trials did v. Primary dermal irritation, rabbit: Agricultural commodities, Food the total residue in treated samples additives, Feed additives, Pesticides and Toxicity Category IV; no irritation. exceed 0.10 ppm of sethoxydim vi. Dermal sensitization, guinea pig: pests, Reporting and recordkeeping equivalents. Preharvest intervals (PHIs) Waived because no sensitization was requirements. ranged from 10 to 89 days with most seen in guinea pigs dosed with the end- Dated: May 8, 1997. samples harvested at a 10 to 20 day PHI. use product Poast (18 percent a.i.). The treatment program included James Jones, 2. Subchronic toxicity testing. A multiple applications at rates varying summary of the subchronic toxicity data Acting Director, Registration Division, Office from 0.5 to 2.0 lb active ingredient (a.i.)/ follows. of Pesticide Programs. acre. Most samples received three A 21–day dermal study in rabbits Summaries of Petitions applications of 0.5 lb a.i./acre. BASF is with a no-observed-adverse-effect-level proposing a tolerance of 0.2 ppm to (NOAEL) of >1,000 mg/kg/day (limit Petitioner summaries of the pesticide account for loss of residue during the dose). The only dose-related finding was petitions are printed below as required first 30 days of frozen storage. slight epidermal hyperplasia at the by section 408(d)(3) of the FFDCA. The Sour cherry samples from six trials in dosing site in nearly all males and summaries of the petitions were five states (MI, PA, OR, UT, WI) and females dosed at 1,000 mg/kg/day. This prepared by the petitioners and sweet cherry samples from six trials in was probably an adaptive response. represent the views of the petitioners. four states (WA, OR, MI, CA) were 3. Chronic toxicity testing. A summary EPA is publishing the petition analyzed for residues of sethoxydim and of the chronic toxicity studies follows. summaries verbatim without editing its metabolites. In only one of the trials i. A 1–year feeding study with dogs them in any way. The petition summary did the total residue in treated samples fed diets containing 0, 8.86/9.41, 17.5/ announces the availability of a exceed 0.10 ppm of sethoxydim 19.9, and 110/129 milligrams (mg)/ description of the analytical methods equivalents. The maximum residue kilogram (kg)/day (males/females) with available to EPA for the detection and found in this sample was only 0.13 a no-observed-effect-level (NOEL) of measurement of the pesticide chemical ppm. PHIs ranged from 7 to 17 days 8.86/9.41 mg/kg/day (males/females) residues or an explanation of why no with the exception of one sweet cherry based on equivocal anemia in male dogs such method is needed. sample which had a PHI of 43 days. The at the 17.5-mg/kg/day dose level. 1. BASF Corporation treatment program included multiple ii. A 2–year chronic feeding/ applications at rates varying from 0.3 or carcinogenicity study with mice fed PP 9F3804 0.5 lb a.i./acre. Most samples received diets containing 0, 40, 120, 360, and BASF has submitted a pesticide two applications of 0.5 lb a.i./acre. 1,080 ppm (equivalent to 0, 6, 18, 54, petition (PP 9F3804) proposing BASF is proposing a tolerance of 0.2 and 162 mg/kg/day) with a systemic tolerances for residues of the pesticide, ppm to account for loss of residue NOEL of 120 ppm (18 mg/kg/day) based sethoxydim, [2-(1-(ethoxyimino)butyl-5- during the first 30 days of frozen on non-neoplastic liver lesions in male [2-(ethylthio)propyl]-3-hydroxy-2- storage. mice at the 360-ppm (54 mg/kg/day) cyclohexen-1-one] and its metabolites One apricot sample and one nectarine dose level. There were no carcinogenic containing the 2-cyclohexen-1-one sample from separate trials in California effects observed under the conditions of moiety (calculated as the herbicide) in were analyzed for residues of the study. The maximum tolerated dose or on the raw agricultural commodities, sethoxydim and its metabolites. The (MTD) was not achieved in female mice. apricots, cherries (sweet and sour), apricot sample showed a total residue of iii. A 2–year chronic feeding/ nectarines, and peaches, at 0.2 parts per less than 0.10 ppm of sethoxydim carcinogenic study with rats fed diets million (ppm). equivalents. The nectarine sample containing 0, 2, 6, and 18 mg/kg/day contained a total of 0.11 ppm of with a systemic NOEL greater than or A. Residue Chemistry sethoxydim equivalents. The PHI was equal to 18 mg/kg/day (highest dose 1. Plant and animal metabolism. The 17 days for the apricot sample and 21 tested). There were no carcinogenic qualitative nature of the residues in days for the nectarine sample. The effects observed under the conditions of plants and animals is adequately treatment program was two applications the study. This study was reviewed understood for the purposes of of 0.5 lb a.i./acre. BASF is proposing a under current guidelines and was found registration. Metabolic pathways in tolerance of 0.2 ppm to account for loss to be unacceptable because the doses Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27029 used were insufficient to induce a toxic Recombinant assays and forward which results in an overestimate of response and an MTD was not achieved. mutations tests in Bacillus subtilis, human exposure. iv. A second chronic feeding/ Escherichia coli, and S. typhimurium 2. ‘‘Other’’ exposure. Other potential carcinogenic study with rats fed diets were all negative for genotoxic effects at sources of exposure of the general containing 0, 360, and 1,080 ppm concentrations of greater than or equal population to residues of pesticides are (equivalent to 18.2/23.0, and 55.9/71.8 to 100 percent. residues in drinking water and exposure mg/kg/day (males/females). The dose C. Threshold Effects from non-occupational sources. Based levels were too low to elicit a toxic on the available studies submitted to response in the test animals and failed Based on the available chronic EPA for assessment of environmental to achieve an MTD or define a lowest toxicity data, EPA has established the risk, BASF does not anticipate exposure effect level (LEL). Slight decreases in Reference Dose (RfD) for sethoxydim at to residues of sethoxydim in drinking body weight in rats at the 1,080-ppm 0.09 mg/kg bw/day. The RfD for water. There is no established dose level, although not biologically sethoxydim is based on a 1–year feeding Maximum Concentration Level (MCL) significant, support a free-standing no- study in dogs with a threshold NOEL of for residues of sethoxydim in drinking observed-adverse-effect-level (NOAEL) 8.86 mg/kg/day and an uncertainty water under the Safe Drinking Water of 1,080 ppm (55.9/71.8 mg/kg/day factor of 100. Act (SDWA). (males/females)). There were no D. Non-Threshold Effects BASF has not estimated non- carcinogenic effects observed under the occupational exposure for sethoxydim. conditions of the study. A repeat chronic feeding/ Sethoxydim is labeled for use by v. In a rat metabolism study, excretion carcinogenicity study in rats was homeowners on and around the was extremely rapid and tissue submitted to EPA in November of 1995 following use sites: flowers, evergreens, accumulation was negligible. and is awaiting review. The Agency will shrubs, trees, fruits, vegetables, 4. Developmental toxicity testing. A reassess sethoxydim tolerances based on ornamental groundcovers, and bedding developmental toxicity study in rats fed the outcome of the rat chronic feeding/ plants. Hence, the potential for non- dosages of 0, 50, 180, 650, and 1,000 carcinogenicity study. In the interim, occupational exposure to the general mg/kg/day with a maternal NOAEL of there is little risk from establishment of population exists. However, these use 180 mg/kg/day and a maternal LEL of the proposed tolerances since available sites do not appreciably increase 650 mg/kg/day (irregular gait, decreased studies in rats and mice indicate no exposure. Protective clothing activity, excessive salivation, and carcinogenic effects, there are adequate requirements, including the use of anogenital staining); and a data to establish a RfD, existing gloves, adequately protect homeowners developmental NOAEL of 180 mg/kg/ tolerances and the proposed tolerances when applying the product. The day, and a developmental LEL of 650 do not exceed the RfD, and the proposed product may only be applied through mg/kg/day (21 to 22 percent decrease in tolerances utilize less than 1 percent of hose-end sprayers or tank sprayers as a fetal weights, filamentous tail, and lack the RfD. Thus, a cancer risk assessment 0.14 percent solution. Sethoxydim is not of tail due to the absence of sacral and/ is not necessary. a volatile compound so inhalation or caudal vertebrae, and delayed E. Aggregate Exposure exposure during and after application ossification in the hyoids, vertebral would be negligible. Dermal exposure centrum and/or transverse processes, 1. Dietary exposure. For purposes of would be minimal in light of the sternebrae and/or metatarsals, and assessing the potential dietary exposure, protective clothing and the low pubes). BASF has estimated aggregate exposure application rate. Post-treatment (re- A developmental toxicity study in based on the Theoretical Maximum entry) exposure would be negligible for rabbits fed doses of 0, 80, 160, 320, and Residue Contribution (TMRC) from the these use sites as contact with treated 400 mg/kg/day with a maternal NOEL of tolerances of sethoxydim on: apricots at surfaces would be low. Dietary risks 320 mg/kg/day and a maternal LOEL of 0.2 ppm, cherries at 0.2 ppm, nectarines from treated food crops are already 400 mg/kg/day (37 percent reduction in at 0.2 ppm, and peaches at 0.2 ppm. adequately regulated by the established body weight gain without significant (The TMRC is a ‘‘worst case’’ estimate tolerances. The additional usesapricots, differences in group mean body weights of dietary exposure since it is assumed cherries, nectarines, and peacheswill and decreased food consumption during that 100 percent of all crops for which not increase the non-occupational dosing); and a developmental NOEL tolerances are established are treated exposure appreciably, if at all. The greater than 400 mg/kg/day (highest and that pesticide residues are at the potential for non-occupational exposure dose tested). tolerance levels.) The TMRC from to the general population is, thus, 5. Reproductive toxicity testing. A 2– existing tolerances for the overall US insignificant. generation reproduction study with rats population is estimated at F. Cumulative Exposure fed diets containing 0, 150, 600, and approximately 37 percent of the RfD. 3,000 ppm (approximately 0, 7.5, 30, Dietary exposure to residues of BASF also considered the potential and 150 mg/kg/day) with no sethoxydim in or on food from these for cumulative effects of sethoxydim reproductive effects observed under the proposed tolerances increases the TMRC and other substances that have a conditions of the study. by less than 1 percent of the RfD for the common mechanism of toxicity. BASF 6. Mutagenicity testing. Ames assays overall US population. BASF estimates is aware of one other active ingredient were negative for gene mutation in indicate that dietary exposure will not which is structurally similar, clethodim. Salmonella typhimurium strains TA98, exceed the RfD for any population However BASF believes that TA100, TA1535, and TA 1537, with and subgroup for which EPA has data [ref. consideration of a common mechanism without metabolic activity. Proposed Rule at 60 FR 13941 March 15, of toxicity is not appropriate at this A Chinese hamster bone marrow 1995]. This exposure assessment relies time. BASF does not have any reliable cytogenetic assay was negative for on very conservative assumptions-100 information to indicate that toxic effects structural chromosomal aberrations at percent of crops will contain produced by sethoxydim would be doses up to 5,000 mg/kg in Chinese sethoxydim residues and those residues cumulative with clethodim or any other hamster bone marrow cells in vivo. would be at the level of the tolerance- chemical; thus BASF is considering 27030 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices only the potential risks of sethoxydim in BASF has concluded that the most category III for acute oral and dermal its exposure assessment. sensitive child population is that of toxicity, primary eye and dermal children ages 1 to 6. BASF calculates irritation, and in toxicity category IV for G. Safety Determination the exposure to this group to be <75 acute inhalation toxicity. Triallate is not 1. U.S. population. Reference Dose percent of the RfD for all uses (including a skin sensitizer. The NOEL for acute (RfD), using the conservative exposure those proposed in this document). The oral toxicity in rats is 50 mg/kg with a assumptions described above, BASF has proposed tolerances in apricots, LOEL of 100 mg/kg based on flat-footed estimated that aggregate exposure to cherries, nectarines, and peaches appearance of the hindlimbs observed at < sethoxydim will utilize 38 percent of represent an exposure to this group of the 100 mg/kg dose level. the RfD for the US population. EPA <1 percent of the RfD. Based on the 2. A more thorough acute generally has no concern for exposures completeness and reliability of the neurotoxicity study in rats was below 100 percent of the RfD. Therefore, toxicity data and the conservative conducted in which the observers were based on the completeness and exposure assessment, BASF concludes unaware of treatment level. In this acute reliability of the toxicity data, and the that there is a reasonable certainty that neurotoxicity study rats were conservative exposure assessment, no harm will result to infants and administered gavage dosage levels of 0, BASF concludes that there is a children from aggregate exposure to the 60, 300, or 600 mg/kg. The LOEL and reasonable certainty that no harm will residues of sethoxydim, including all NOEL of this study was determined to result from aggregate exposure to anticipated dietary exposure and all be 300 mg/kg and 60 mg/kg, residues of sethoxydim, including all other non-occupational exposures. respectively. The LOEL was based on a anticipated dietary exposure and all H. Other Considerations transient decrease in motor activity other non-occupational exposures. detected at the time of peak effect (7 hr, 2. Infants and children. The nature of the residue is postdosing). No gross pathological Developmental toxicity was observed in adequately understood, and practical findings were present; a developmental toxicity study using and adequate analytical methods are neurohistopathological examinations rats but was not seen in a available for enforcement purposes. did not reveal any treatment-related developmental toxicity study using Enforcement methods for sethoxydim lesions in either the central or rabbits. In the developmental toxicity are listed in the Pesticide Analytical peripheral nervous systems. Abnormal study in rats a maternal NOAEL of 180 Manual, Vol. II (PAM II). Enforcement behavioral effects were detected at the mg/kg/day and a maternal LEL of 650 methods have also been submitted to 600 mg/kg dose but not at any of the mg/kg/day (irregular gait, decreased the Food and Drug Administration for lower dose levels. activity, excessive salivation, and publication in PAM II. anogenital staining) was determined. A There is no reasonable expectation 3. A subchronic neurotoxicity study developmental NOAEL of 180 mg/kg/ that secondary residues will occur in in rats exposed for 13–weeks through day and a developmental LEL of 650 milk, eggs or meat of livestock and the diet to 0, 100, 500 or 2,000 ppm mg/kg/day (21 to 22 percent decrease in poultry from the proposed uses of triallate (0,6.38, 32.9, or 128.8 mg/kg/ fetal weights, filamentous tail and lack sethoxydim on apricots, cherries, day, males, respectively; 0, 8.14, 38.9, or of tail due to the absence of sacral and/ nectarines, and peaches; there are no 146.6, females, respectively).The LOEL or caudal vertebrae, and delayed livestock feed items associated with for systemic toxicity and neurotoxicity ossification in the hyoids, vertebral these commodities. was 500 ppm (mg/kg/day: 32.9, males; centrum and/or transverse processes, 38.9, females); the NOEL was 100 ppm I. International Tolerances sternebrae and/or metatarsals, and (mg/kg/day: 6.38, males; 8.14, females). pubes). Since developmental effects A maximum residue level has not The LOEL was based on treatment- were observed only at doses where been established for sethoxydim in related lesions in the spinal cord and maternal toxicity was noted, the apricots, cherries (sweet and sour), peripheral nervous systems. Abnormal developmental effects observed are peaches, and nectarines by the Codex behavioral effects were detected at the believed to be secondary effects Alimentarius Commission. 2,000 ppm level but not at any of the lower dose levels. resulting from maternal stress. 2. Monsanto Company 3. Reproductive toxicity. A 2– 4. A 2–year feeding study with dogs generation reproduction study with rats PP 8F2128 fed dosage levels of 0, 1.275, 4.25 and fed diets containing 0, 150, 600, and Monsanto Company has submitted 12.75 milligrams/kilograms/day (mg/kg/ 3,000 ppm (approximately 0, 7.5, 30, pesticide petition (PP 8F2128) day) with a no-observed effect level and 150 mg/kg/day) produced no proposing the establishment of (NOEL) of 1.275 mg/kg/day and a LEL reproductive effects during the course of tolerances for residues of the herbicide of 4.25 mg/kg/day based on increased the study. Although the dose levels triallate (S-2,3,3, trichloroallyl liver weight, elevated serum alkaline were insufficient to elicit a toxic diisopropyl thiocarbamate) and its phosphate values, and increased response, the Agency has considered metabolite 2,3,3,-trichloro-2-propene hemosiderin deposition. The RfD for this study usable for regulatory sulfonic acid (TSCPA) expressed as the triallate is 0.013 mg/kg/day based on the purposes and has established a free- parent equivalent, in on on the raw NOEL of 1.275 mg/kg/day and an standing NOEL of 3,000 ppm agricultural commodities sugarbeet uncertainty factor of 100 for intra- and (approximately 150 mg/kg/day) [ref. roots at 0.1 ppm and sugarbeet foliage inter-species variation. Cholinesterase Proposed Rule at 60 FR 13941]. at 0.5 ppm. activity in plasma, erythrocytes and 4. Reference dose. Based on the brain was not inhibited after 1.5, 3, 6, demonstrated lack of significant A. Toxicological Profile 12, 18 and 24 months of exposure. developmental or reproductive toxicity Monsanto has submitted numerous 5. A second chronic dog study was BASF believes that the RfD used to toxicology studies in support of triallate. conducted in which dogs were assess safety to children should be the The following are summaries of key administered gelatin capsules same as that for the general population, toxicology studies. containing doses of 0, 0.5, 2.5, or 15 mg 0.09 mg/kg/day. Using the conservative 1. Several acute toxicology studies triallate/kg/day for 1–year. The LEL exposure assumptions described above, place technical triallate in acute toxicity based on an increase in serum alkaline Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27031 phosphatase level was 15 mg/kg/day increase in mortality, decrease in body B. Threshold Effects and the NOEL was 2.5 mg/kg/day. weight, increase in chronic nephritis, 1. Chronic effects. Based on a 6. A 2–year chronic feeding/ and head bobbing and circling. For complete and reliable toxicity database, carcinogenicity study in B6C3F1 mice maternal toxicity, the LEL was 600 ppm the EPA has adopted a reference dose fed dosage levels of 0, 3, 9, or 37.5 mg/ and NOEL was 150 ppm. (RfD) value of 0.013 mg/kg bwt/day kg/day resulted in a statistically 10. A developmental toxicity study in using the NOEL of 1.275 mg/kg bwt/day significant increased incidence of rats fed dose levels of 0, 10, 30, or 90 from a 2–year dog feeding study and an hepatocellular carcinomas in males at mg/kg/day during gestation days 6-21 uncertainty factor of 100. The endpoint 37.5 mg/kg/day and a positive trend and resulted in a developmental toxicity a borderline significant increase in effect in this study was increased liver females at 37.5 mg/kg/day. For chronic NOEL greater than 90 mg/kg/day. For weights and hemosiderin and serum toxicity, the NOEL was 3 mg/kg/day and fetotoxicity, the LEL was 90 mg/kg/day alkaline phosphate (SAP) levels. the LEL was 9 mg/kg/day. The LEL was and the NOEL was 30 mg/kg/day based 2. Acute effects. EPA has determined based on increases in liver weights; the on reduced body weight, reduced that the appropriate NOEL to use to incidence of altered hepatic foci of the ossification of the skull, and malaligned assess safety of acute exposure is 5 mg/ liver; splenic hematopoiesis and blood sternebrae. For maternal toxicity, the kg bwt/day from a developmental glucose levels in males at 60 and 250 LEL was 90 mg/kg/day and the NOEL toxicity study in rabbits, based in ppm. was 30 mg/kg/day based on reduction in increases in the incidences of skeletal 7. A 2–year chronic feeding/ maternal body weight. The teratogenic malformations in rabbit fetuses. EPA has carcinogenicity study in male and NOEL was > 90 mg/kg/day. concluded that the subpopulation of female rats fed dose levels of 0, 0.5, 2.5, 11. A developmental toxicity study in concern for this endpoint are females and 12.5 mg/kg/day resulted in an rabbits fed doses of 0, 5, 15, and 45 mg/ older than 13 years old. increased incidence in renal tubular cell kg/day on gestation days 6 through 28 C. Non-Threshold Effects adenoma above historical control levels. resulted in a developmental toxicity Carcinogenicity. Triallate has been Although no absolute pair-wise NOEL greater than 45 mg/kg/day. For classified by EPA as Group C - possible statistical significance was found, renal fetotoxicity, the LEL was 15 mg/kg/day tubular cell adenoma is considered a human carcinogen. EPA based this and the NOEL was 5 mg/kg/day based classification on a statistically rare tumor type making this finding on an increase in fused sternebrae, biologically significant. For chronic significant increase in hepatocellular increased number of bent hyoid arch tumors in male mice, with a positive toxicity, the NOEL was 2.5 mg/kg/day bones, as well as decreased body and the LEL was 12.5 mg/kg/day. The trend and a borderline significant weight. The NOEL was >45 mg/kg/day increase in females. In addition, the LEL was based on decreased survival in for teratogenicity. high-dose males and females, decreased increased incidence of renal tubular cell mean body weight in high-dose males, 12. Numerous mutagenicity assays adenoma, a rare tumor type, in male rats and increased adrenal weights in high- have been conducted with triallate was considered by EPA to be dose males. resulting in mixed results. Triallate gave biologically significant although no 8. A chronic/oncogenicity study of a positive response for base pair absolute pair-wise statistical triallate was also conducted in hamsters conversions in Salmonella strains significance was found. Triallate is at 50, 300, or 2,000 ppm for 79 (females) TA100 and TA1535 with and without considered genotoxic and has structural or 95 (males) weeks. The objective of activation and negative results without similarities to carcinogenic analogues. this study was to see if triallate induces activation in Ames assays. Triallate was EPA is currently applying the melanotic changes (nodular aggregated positive for mitotic recombination in extrapolation model approach for risk of melanocyte, possibly premalignant) Saccharomyces cerevisiae strain D3 but assessment and has calculated the upper in skin of hamsters similar to those was negative for gene conversion in bound potency factor Q1* to be 0.08320 induced by diallate, a compound strain D4. The mouse lymphoma gene (mg/kg/day)-1. structurally similar to triallate. There mutation assay produced both positive D. Aggregate Exposure were no increases in either non- results for forward mutations at the neoplastic or neoplastic lesions in any TK∂/- locus with and without activation For purposes of assessing the organs. For chronic toxicity, the NOEL and negative results at this locus. potential dietary exposure, the was 300 ppm and LEL was 2,000 ppm Triallate was nonmutagenic in a theoretical maximum residue based on a decrease in body weight gain dominant lethal test with mice given a concentration (TMRC) and anticipated and corresponding decrease in food single intraperitoneal injection; this chronic dietary risk assessment based consumption by males fed the 2,000 study however, was considered on exposure to all crops for which ppm diet during the first 13 weeks of inadequate by current test guideline/ triallate is labelled is an appropriate the study but not thereafter. standards. Triallate did not induce gene estimate of aggregate exposure. EPA has 9. A 2–generation reproduction study mutations (HGPRT) locus) in Chinese notified the petitioner that these with rats fed dose levels of 0, 50, 150 hamster ovary cells (CHO) with and analyses include permanent tolerances or 600 ppm resulted in a reproductive without metabolic activation. It gave a of 0.05 ppm for peas, lentils, barley, and NOEL of 150 ppm and a LEL of 600 positive response for sister chromatid wheat, as established under 40 CFR ppm. Treatment-related reproductive exchanges (SCEs) in CHO cells both 180.314. Tolerances are also established effects were: reduced pregnancy rates; with and without metabolic activation. for canary grass; however, EPA’s Dietary shortened gestation period; increased Triallate did not induce unscheduled Risk Evaluation Section (DRES) does not neonate mortality in the F2b litter; DNA synthesis in rat hepatocytes. In an have consumption figures for this RAC, reduced pup weights at birth in the F2b in vivo cytogenetic assay, no mutagenic and its contribution is expected to be litter; and reduced pup weights in late response was seen in the bone marrow negligible. Anticipated residues, and lactation in all litters. These effects were cells of hamsters. Overall, triallate is 100 percent of crop treated was used for only observed in rats treated with the genotoxic in in vitro systems and sugarbeet sugar. Sugarbeet foliage is a highest dose level which also caused negative in in vivo systems and is potential animal feed item associated maternal toxicity was manifested by an considered a genotoxic compound. with this use. However, based on the 27032 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices results of animal metabolism studies, extent in other crops. Hence, dietary tolerance levels were used for all EPA has concluded that secondary exposure to thiocarbamate herbicides is commodities. Since the endpoint used residues are not expected to occur in expected to be minimal. Considering the for risk assessment of the acute risk is meat, milk, poultry, and eggs as a result low fraction of the percent of the RfD derived from a rabbit developmental of this proposed use. (<.04 percent) occupied by dietary study, EPA concluded that the EPA has also conducted an acute exposure and the minimal exposure population subgroup of concern would dietary exposure assessment. It is EPA levels to other thiocarbamate herbicides be females (13+ years old). The MOE policy to use ‘‘high-end’’ residue level through the diet; the combined exposure value calculated for this subgroup is estimates for acute exposure analyses; in to other thiocarbamate herbicides would 12,500, which is well above the level this case, tolerance levels were used for not be expected to pose a human health considered by EPA to be of concern all commodities. concern. There is also no data to (>100). EPA has concluded that there is Other potential sources of exposure of indicate that there are similar little concern for acute effects due to the general population to residues of mechanisms of toxicity between triallate dietary exposure to this chemical. pesticides are residues in drinking water and carbamate insecticides that inhibit 4. Conclusion. Based on the above risk and exposure from non-occupational cholinesterase activity. Triallate does assessments, there is a reasonable sources. Based on the available studies not inhibit cholinesterase activity in certainty that no harm will result from used in EPA’s assessment of plasma, erythrocytes and brain in dogs aggregate exposure to triallate residues. environmental risk, triallate appears to after chronic exposure to triallate. be moderately persistent and immobile Triallate does not cause symptoms F. Determination of Safety for Infants to highly immobile in different soils. typical of cholinesterase inhibition in and Children EPA’s ‘‘Pesticides in Ground Water rats after acute or subchronic exposure In assessing the potential for Database’’ (EPA 734–122–92–001, to triallate. additional sensitivity of infants and September 1992), shows no detections children to residues of triallate, the for triallate in ground water, and it does E. Determination of Safety for U.S. developmental toxicity studies in the rat not exceed the proposed criteria for Population and Sub-populations. and rabbit and the 2–generation establishing a pesticide as restricted use 1. Upper bound carcinogenic reproduction study in the rat should be due to ground water concerns. It was exposure. Based on EPA’s Q1* value of considered. The developmental toxicity not a target of EPA’s National Survey of 0.08320 (mg/kg/day)-1, the upper bound studies are designed to evaluate adverse Wells for Pesticides, and is not listed as cancer risk contributed by all the effects on the developing organism a unregulated contaminant for published uses, plus this new use on resulting from pesticide exposure monitoring in drinking watersupplies sugarbeets was calculated by EPA to be during prenatal development to one or under the Safe Drinking Water Act. No 1.7 x 10-7 for the U.S. Population in Maximum Contaminant Level or Health general; risks from the established uses both parents. Reproduction studies Advisory levels have been established contribute approximately 1 x 10-7 to this provide information relating to effects for triallate. risk, and the proposed use on sugarbeets from exposure to the pesticide on the Previous experience with persistent contributes approximately 0.7 x 10-7. reproductive capability of mating and immobile pesticides for which there The sub-population with the highest animals and data on systemic toxicity. have been available data to perform exposure level were children (1 to 6 The results of these studies indicate that quantitative risk assessments have years old) which has an upper bound triallate is not a specific teratogen or demonstrated that drinking water cancer risk was 4.2 x 10-7. These levels reproductive toxin. The only evidence exposure is typically a small percentage of risk are below the level of risk of developmental toxicity occuring of the total exposure when compared to generally considered to be of concern by below maternally toxic doses was an the total dietary exposure. This EPA (1 x 10-6). EPA has concluded that increase in fused sternebrae, increase observation holds even for pesticides the dietary cancer risk posed by use of number of bent hyoid arch bones, as detected in wells and drinking water at triallate is not considered to be of well as decreased body weight in levels nearing or exceeding established concern. rabbits. In most instances, fusion only MCLs. Based on this experience and 2. Chronic dietary exposure. Using involved two adjacent sternebrae and considering the low fraction of a percent anticipated residues and realistic not the entire chain. Consequently, this of the RfD (<.04 percent) occupied by estimates of percent of crop treated, the type of skeletal defect is considered a dietary exposure to triallate, combined anticipated residue concentration (ARC) minor anomaly rather than a major exposure from drinking water and for the overall U.S. Population is malformation. The incidence of bent dietary exposure would not be expected calculated by EPA to be 0.000002 mg/ hyoid arch bones was increased from to result in an ARC that exceeds 100 kg bwt/day, representing 0.01 percent of control values but within the percent of the RfD. Therefore, potential the RfD, for established uses and this laboratory’s historical control range. The triallate residues in drinking water are proposed use on sugarbeets. The ARCs LEL for fetotoxicity in rabbits was not likely to pose a human health for the U.S. Population and the 22 considered by EPA to be 15 mg/kg/day concern. population subgroups all utilized <0.04 and the NOEL was 5 mg/kg/day. EPA consideration of a common percent of the RfD, with the highest The FFDCA section 408 provides that mechanism of toxicity is not appropriate exposed subgroup, being children (1 to EPA may apply an additional safety at this time since there is no information 6 years old), with 0.035 percent of the factor for infants and children in the to indicate that toxic effects produced RfD utilized. EPA has concluded that case of threshold effects to account for by triallate would be cumulative with the chronic dietary risk exposure from completeness of the database or for those of any other chemical compound. triallate appears to be minimal for this significant developmental effects. The Triallate is a thiocarbamate herbicide. petition for use on sugarbeets, and does toxicological database relative to pre- Thiocarbamate herbicides are not not exceed the RfD for any of the DRES and post-natal effects of triallate is applied to any significant degree in subgroups. complete. There are no developmental areas where triallate would be used to 3. Acute dietary exposure. EPA used effects that are of substantial concern. control wild oats in sugarbeet crops. ‘‘high-end’’ residue level estimates for Thus, an additional safety factor is not Thiocarbamates are only used to a small acute exposure analyses; in this case, necessary. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27033

The cancer risk and percent of the RfD triallate portion is eluted through a of the sediment and undergo microbial that will be utilized by aggregate Florsil clean-up column, concentrated degradation. exposure to residues of triallate is less and quantitated by capillary GC using [FR Doc. 97–12910 Filed 5–15–97; 8:45 am] than 1 x 10-6 and 0.04 percent of the electron capture detection (ECD). The BILLING CODE 6560±50±F RfD, respectively, for all populations TCPSA portion is isolated using a phase and subgroups including infants and transfer catalyst, derivatized cleaned up children. Therefore, based on the using SPE, and quantitated by capillary ENVIRONMENTAL PROTECTION completeness and reliability of the GC using ECD. Residue studies show AGENCY toxicity data and the conservative that TCPSA is the major residue in exposure assessment, it is concluded sugarbeet foliage, but is not a significant [PF±734; FRL±5717±7] that there is a reasonable certainty that residue in sugarbeet roots since it was Notice of Filing of Pesticide Petitions no harm will result to infants and not detected above the lower limit of children from aggregate exposures to method validation (0.01 ppm) when AGENCY: Environmental Protection triallate. triallate was applied at maximum Agency (EPA). G. Estrogenic Effects application rates. Since sugarbeet ACTION: Notice. foliage seldom enters interstate The toxicity studies required by EPA commerce, EPA has informed the SUMMARY: This notice announces the for the registration of pesticides measure petitioner that enforcement of the initial filing of pesticide petitions numerous endpoints with sufficient proposed tolerances would be limited to proposing the establishment of sensitivity to detect potential endocrine- sugarbeet roots and dried pulp. As regulations for residues of certain modulating activity. No effects have triallate is the primary residue in pesticide chemicals in or on various been identified in subchronic, chronic, sugarbeet roots and dried pulp, EPA has food commodities. developmental, or reproductive toxicity concluded that the currently available DATES: Comments, identified by the studies to indicate any endocrine- enforcement for parent only is adequate docket control number PF–734, must be modulating activity by triallate. The to enforce the tolerances on a time- received on or before June 16, 1997. subchronic and chronic toxicity studies limited basis. ADDRESSES: By mail submit written examines tissues from the male and Sugarbeet foliage is considered by comments to: Public Response and female reproductive system. The multi- EPA as an animal feed item. However, Program Resources Branch, Field generation reproduction study in EPA has informed the petitioner that Operations Divison (7505C), Office of rodents is a complex study design based on animal metabolism studies and Pesticides Programs, Environmental which measures a broad range of Protection Agency, 401 M St., SW., endpoints in the reproductive system animal residue studies, secondary Washington, DC 20460. In person bring and in developing offspring that are residues are not expected to occur in comments to: Rm. 1132, CM #2, 1921 sensitive to alterations by chemical meat, milk, poultry, and eggs as a result Jefferson Davis Highway, Arlington, VA. agents. Triallate only caused effects in of this proposed use. Comments and data may also be the reproduction study at doses that I. Environmental Fate submitted electronically by following were maternally toxic including an increase in mortality. Thus, these results Laboratory studies indicate that the instructions under demonstrate that triallate is not a triallate degrades in soil with a half- ‘‘SUPPLEMENTARY INFORMATION.’’ specific reproductive toxin. lives ranging from 18 to 21 days. Field No confidential business information dissipation studies show that triallate should be submitted through e-mail. H. Chemical Residue degrades with half-lives ranging from 20 Information submitted as a comment Permanent tolerances are established to 190 days, but 190 days is clearly an concerning this document may be for triallate parent at 0.05 ppm for peas, outlier based on all other data. Average claimed confidential by marking any lentils, barley and wheat, as established field half-life from all other locations is part or all of that information as under 40 CFR 180.314. Triallate is 49 days. Triallate metabolizes to CO2, ‘‘Confidential Business Information’’ metabolized in plants and animals to bound residues, and TCPSA. Triallate (CBI). CBI should not be submitted one major metabolite, TCPSA (2,3,3- and TCPSA do not appear to move through e-mail. Information marked as trichloroprop-2-enesulfonic acid), and below a 6-inch depth. CBI will not be disclosed except in numerous natural constituents. Since In a laboratory study conducted with accordance with procedures set forth in the establishment of permanent worst-case conditions, 50 percent of 40 CFR part 2. A copy of the comment tolerances for triallate, EPA has decided applied triallate volatized from that does not contain CBI must be that TCPSA should also be regulated. agricultural sand with a very low submitted for inclusion in the public Based on results of residue trials, organic content. Triallate volatility record. Information not marked tolerances have been proposed by decreases from soils with higher organic confidential may be disclosed publicly Monsanto for combined residues of content since triallate binds to organic by EPA without prior notice. All written triallate and TCPSA in sugarbeet matter in the soil. Triallate is typically comments will be available for public commodities at 0.1 ppm in sugarbeet soil incorporated when applied so inspection in Rm. 1132 at the address roots, 0.5 ppm in sugarbeet tops, and 0.2 volatization is minimized. Triallate is given above, from 8:30 a.m. to 4 p.m., ppm in sugarbeet pulp. A practical fairly stable to hydrolysis and Monday through Friday, excluding legal method for determining triallate has photolysis. holidays. been approved by EPA and is available Triallate is not likely to leach into FOR FURTHER INFORMATION CONTACT: from the Field Operations Division, ground water. Triallate was immobile in Joanne I. Miller, Product Manager, (PM) Office of Pesticide Programs. Monsanto batch adsorption/desorption studies, 23, Registration Division (7505C), Office is in the process of developing a and soil column and soil tlc results of Pesticide Programs, Environmental practical method for TCPSA. These confirmed its low mobility. Triallate is Protection Agency, 401 M St., SW., methods include extraction followed by unlikely to runoff into surface water, it Washington, DC 20460. Office location, partitioning with methylene chloride to would stick to the soil. If triallate did telephone number, and e-mail address: isolate triallate fromTCPSA. The get into surface water, it would be part Rm. 237, CM#2 1921 Jefferson Davis 27034 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Hwy., Arlington, VA 22202, (703) 305- summaries of the petitions were CBTS previously concluded that due to 6224; e-mail: prepared by the petitioners and the very low level of total residue, the [email protected]. represent the views of the petitioners. small percentage of the hydroxyl and SUPPLEMENTARY INFORMATION: EPA has EPA is publishing the petition free acid metabolites present, and no received pesticide petitions as follows summaries verbatim without editing expressed concerns over the low levels proposing the establishment and/or them in any way. The petition summary of residue in rice plants for amendment of regulations for residues announces the availability of a homosaccharin, sulfonamide, and the of certain pesticide chemicals in or on description of the analytical methods desmethyl metabolite, the only residue various food commodities under section available to EPA for the detection and of concern in rice plants (grain and 408 of the Federal Food, Drug, and measurement of the pesticide chemical straw) was the parent herbicide, Comestic Act (FFDCA), 21 U.S.C. 346a. residues or an explanation of why no bensulfuron methyl. In consideration of EPA has determined that these petitions such method is needed. PP 4F4367 CBTS has again concluded contain data or information regarding that the nature of the residue in crayfish the elements set forth in section 1. E. I. DuPONT is adequately understood and that the 408(d)(2); however, EPA has not fully PP 4F4367 only residue of concern is the parent, evaluated the sufficiency of the bensulfuron methyl. submitted data at this time or whether EPA has received a pesticide petition 2. Analytical method. There is an the data supports grantinig of the (PP) 4F4367 pursuant to section 408(d) adequately validated practical analytical petition. Additional data may be needed of the Federal Food, Drug, and Cosmetic method available using HPLC-UV with before EPA rules on the petition. Act, as amended, 21 U.S.C. Section column and eluent switching, to The official record for this notice of 346a(d), by the Food Quality Protection measure levels of bensulfuron methyl in filing, as well as the public version, has Act of 1996 (Pub. L. 104–170, 110 Stat. or on crayfish with a limit of been established for this notice of filing 1489) from E. I. DuPont de Nemours and quantitation that allows monitoring of under docket control number [PF–734] Co., Inc. (DuPont), Barley Mill Plaza, crayfish at or above the proposed (including comments and data P.O. Box 80083, Wilmington, DE 19880– tolerance level. submitted electronically as described 0038, proposing to amend 40 CFR 3. Magnitude of the residue. Crayfish below). A public version of this record, 180.445 by establishing a tolerance for field trial residue data show that including printed, paper versions of residues of the herbicide bensulfuron bensulfuron methyl residues will not electronic comments, which does not methyl, (methyl-2[[[[[(4,6-dimethoxy- exceed the proposed tolerance of 0.05 include any information claimed as CBI, pyrimidin-2-yl)amino] ppm on crayfish. No detectable residues is available for inspection from 8:30 carbonyl]amino] at a limit of quantitation (LOQ) of 0.025 a.m. to 4 p.m., Monday through Friday, sulfonyl]methyl]benzoate) in or on ppm were found in whole body or excluding legal holidays. The official crayfish at 0.05 ppm. The petitioner has cooked crayfish at 1, 3, 7, 14, or 21 days record is located at the address in also proposed an amendment to the after bensulfuron methyl application. In ‘‘ADDRESSES’’ at the beginning of this directions for use for Londax* consideration of PP 4F4367 CBTS has document. herbicide, to permit crayfish farming in concluded that processing data for Electronic comments can be sent treated rice fields. EPA has determined crayfish is not required. directly to EPA at: that the petition contains data or [email protected] information regarding the elements set B. Toxicological Profile Electronic comments must be forth in section 408(d)(2); however, EPA 1. Acute toxicity. Bensulfuron methyl submitted as an ASCII file avoiding the has not fully evaluated the sufficiency technical has been placed in EPA use of special characters and any form of the submitted data at this time or Toxicity Category III for acute dermal of encryption. Comment and data will whether the data supports granting of toxicity based on the test article being also be accepted on disks in the petition. Additional data may be nonlethal and nonirritating at the limit Wordperfect 5.1 file format or ASCII file needed before EPA rules on the petition. dose of 2,000 mg/kg (highest dose format. All comments and data in An adequately validated analytical tested). Bensulfuron methyl has been electronic form must be identified by method is available for enforcement placed in Category IV for the remaining the docket number [PF–734] and purposes. acute toxicity tests based on the following: A rat acute oral study with an appropriate petition number. Electronic A. Residue Chemistry comments on this notice may be filed LD50 of >5,000 mg/kg; a rat acute online at many Federal Depository 1. Plant metabolism. The qualitative inhalation study with an LC50 of >5.0 Libraries. nature of the residues of bensulfuron mg/l; and primary eye and dermal methyl in rice is adequately understood. irritation tests that demonstrated no List of Subjects Metabolism studies with bensulfuron significant irritation in the rabbit. A Environmental protection, methyl indicate the major metabolic dermal sensitization test with Agricultural commodities, Food pathway being oxidative o-dealkylation bensulfuron methyl technical in guinea additives, Feed additives, Pesticides and of the parent to a desmethyl metabolite. pigs demonstrated no significant effects. pests, Reporting and recordkeeping The desmethyl metabolite is cleaved at Based on these results, DuPont believes requirements. the C-N bond to form sulfonamide that bensulfuron methyl represents a Dated: May 7, 1997. which quickly undergoes ring closure minimal acute toxicity risk. forming homosaccharin; the end 2. Genotoxicity. Bensulfuron methyl James Jones, product. Hydroxylation of the 5 position technical was negative (non-mutagenic) Acting Director, Registration Division, Office of the pyrimidine ring forms a hydroxyl in the Ames microbial mutation assay of Pesticide Programs. metabolite which can also be cleaved to using four strains of Salmonella form sulfonamide. An alternative typhimurium and in a hypoxanthine- Summaries of Petitions pathway is the direct cleavage of the C- guanine phosphoribosyl transferase Petitioner summaries of the pesticide N bond in the parent to sulfonamide. gene mutation assay using Chinese petitions are printed below as required One side reaction may lead to the hamster ovary cells. In an in vivo bone by section 408(d)(3) of the FFDCA. The formation of a free acid metabolite. marrow chromosome study in which Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27035 rats were dosed with 0, 500, 1,500 or mg/kg/day, far exceeds any expected 2,500 and 5,000 ppm. Very little toxicity 5,000 mg/kg of bensulfuron methyl human occupational or consumer was observed in this study. There were technical, no dose related toxicity or exposure. no dose-related effects on mortality, effects on mitotic index or chromosome 4. Subchronic toxicity. In a 90–day clinical signs, body weights, food aberrations were observed. In an in vitro feeding study in rats conducted with consumption, or food efficiency. The sister chromatid exchange assay Chinese bensulfuron methyl technical at dietary systemic NOEL was 2,500 ppm (226 and hamster ovary cells were dosed with levels of 0, 100, 1,500, and 7,500 ppm, 227 mg/kg/day, M/F) and the systemic bensulfuron methyl technical at the NOEL was 1,500 ppm (93 and 111 LEL was 5,000 ppm (455 and 460 mg/ concentrations ranging from 0.135 to 2.7 mg/kg/day, M/F) and the LEL was 7,500 kg/day, M/F) based on reduced water mM. A slight (1.4 fold) increase in sister ppm (474 and 567 mg/kg/day, M/F) consumption; increased alkaline chromatid exchanges was observed in based on increased cholesterol, slight phosphatase, SGOT, SGPT, and total the nonactivated system at the reductions in erythrocytes among males, cholesterol; enlarged liver, abdominal maximum concentration however, a slightly elevated liver weights, and cavity ascites, and benign nodules and negative response was observed in the reduced uptake of stain in the masses in the liver; increased liver activated system at the same cytoplasm of liver cells fixed for weights; centrilobular hepatocyte concentration. In an in vitro assay to histological evaluation in both sexes. swelling, focal hepatocellular necrosis, assess unscheduled DNA synthesis in The latter was not considered to be and increased brown pigment primary rat hepatocytes, bensulfuron associated with an adverse effect. In a deposition of stellate cells in the liver. methyl technical was negative. Based on 90–day feeding study in mice conducted There were no oncogenic effects found the weight of these data, DuPont with bensulfuron methyl technical at at the maximum dose of 5,000 ppm (455 believes that bensulfuron methyl is dietary levels of 0, 300, 1,000, 3,000 and and 460 mg/kg/day, M/F). A 2–year neither genotoxic nor mutagenic. 10,000 ppm, the NOEL was 1,000 ppm combined chronic toxicity and (132 and 133 mg/kg/day, M/F) and the 3. Reproductive and developmental oncogenicity study in rats was LEL was 3,000 ppm (387 and 407 mg/ toxicity. A two generation, 4 litter conducted with bensulfuron methyl kg/day, M/F) based on fatty deposition reproduction study with CD rats treated technical at dietary levels of 0, 50, 750 in the cortico-medullary junction of the at dietary levels of 0, 50, 750, or 7,500 and 7,500 ppm. Bensulfuron methyl adrenals in females, and centrilobular ppm of bensulfuron methyl failed to caused little toxicity at the doses used hepatocyte swelling and increased liver reveal any evidence suggestive of an in this study. The systemic NOEL was weights in males and females. In a 90– 750 ppm (30 and 40 mg/kg/day, M/F) adverse effect on reproductive potential. day feeding study in dogs conducted A reproductive NOEL was demonstrated and the systemic LEL was 7,500 ppm with bensulfuron methyl technical at (309 and 405 mg/kg/day, M/F) based on at the highest dose tested of 7,500 ppm dietary levels of 0, 100, 1,000, and (309 and 405 mg/kg/day in males and decreased body weight gain in females, 10,000 ppm, the NOEL was 1,000 ppm increased BUN and creatinine in males, females respectively). In a (32.1 and 36.3 mg/kg/day, M/F) and the developmental toxicity study with diffuse fatty changes in male livers, and LEL was 10,000 ppm (340 and 360 mg/ centrilobular hepatocellular bensulfuron methyl technical, pregnant kg/day, M/F) based on elevated alkaline rats were administered oral doses of 0, hypertrophy and centrilobular phosphatase and alanine hepatocyte cytoplasmic basophilia 50, 500 or 2,000 mg/kg/day on gestation aminotransferase (ALT or SGPT), days 7–16. There were no indications of margination in both sexes. Although elevated liver weights, gross liver effects were minimal to mild for chronic compound related teratogenicity or enlargement and discoloration, and feeding/oncogenicity studies with maternal effects at any dose. Fetuses microscopic findings of gall bladder bensulfuron methyl, these studies have from the 200 mg/kg group exhibited calculus, bile stasis, centrilobular been found acceptable by EPA as noted signs of minimal toxicity, which hepatocyte swelling, and vacuolation of in the New Chemical Standard included an increased incidence of the seminiferous tubules at the highest Toxicology Chapter for DPX-F5384 minor skeletal variations. These dose tested. consisted of extra ossification centers in 5. Chronic toxicity/oncogenicity. A 1– (bensulfuron methyl) -‘‘because of the the lumbar region and incompletely year feeding study in dogs was mild toxicity and lack of oncogenic ossified sternebrae and hyoid. The fetal conducted with bensulfuron methyl response at substantial maximum doses NOEL was 500 mg/kg/day based on technical at dietary levels of 0, 50, 750, in the chronic and subchronic studies in these observations at the high dose. In and 7,500 ppm. Very little toxicity and rats and mice. There was also a lack of a developmental toxicity study with no mortality were observed in this an oncogenic response in structurally bensulfuron methyl technical, pregnant study. Gross findings suggest that related chemicals.’’ rabbits were administered oral doses of bensulfuron methyl may have directly 6. Animal metabolism. Disposition 0, 30, 300 or 1,500 mg/kg/day on irritated the oral mucosa, especially in and metabolism of bensulfuron methyl gestation days 7–19. Clinical signs of the high dose males and females. The were tested in male and female rats at maternal toxicity and some decrease in major target organ was the liver as oral doses of 16 an 2,000 mg/kg. fetal weight gain at the high dose demonstrated by elevated alkaline Absorption of the radiolabelled test defined maternal and fetotoxic NOEL’s phosphatase and SGPT (ALT), elevated article from the gut was nearly total at at 300 mg/kg/day. There were no dose liver weights, and microscopic findings both dose levels. The major elimination related fetal malformations or of brown pigment in the biliary route was urine for the low-dose groups variations. A teratogenic NOEL of 1,500 canaliculi of the liver at the highest dose and feces for the high-dose groups. No mg/kg/day was defined. Based on the tested. The defined systemic NOEL is measurable quantities of CO2 or volatile weight of these data, DuPont believes 750 ppm (21.4 and 19.9 mg/kg/day, M/ metabolites were released from the that bensulfuron methyl is not a F) and the systemic LEL is 7,500 ppm lungs. Minute quantities of radioactivity reproductive toxicant. Developmental (237.3 and 222.6 mg/kg/day, M/F). A 2– (2.1%) were distributed to the body effects observed in the absence of year combined chronic toxicity and tissues, chiefly the gastrointestinal tract. maternal toxicity were minimal, were oncogenicity study in mice was Approximately half the administered only observed in the rat and had a conducted with bensulfuron methyl radioactivity was eliminated by 24 clearly defined NOEL. This NOEL, 500 technical at dietary levels of 0, 10, 150, hours in the low-dose groups, and 48 27036 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices hours in the high dose groups. Nearly proposed use. There are no other 3. Non-dietary exposure. Bensulfuron 99% was eliminated by the time of established tolerances or registered uses methyl is not registered for any use sacrifice at 96 hours. This study for bensulfuron methyl in the United which could result in non-occupational, indicates that bensulfuron methyl has States. Based on a NOEL of 750 ppm non-dietary exposure to the general low toxicity and does not accumulate (21.4 and 19.9 mg/kg/day, M/F) from the population. within the body. The major compound chronic dog toxicity study and a 100– D. Cumulative Effects eliminated in urine and feces was ODS fold safety factor, the reference dose DPX-F5384 (desmethyl metabolite), (RfD) is 0.20 mg/kg/day. Assuming Bensulfuron methyl belongs to the formed by demethylation of the residues at tolerance levels and that sulfonylurea class of compounds. Other pyrimidine ring. The parent compound 100% of the crop is being treated, a compounds in this class are registered was found in feces but not in urine. theoretical maximum residue herbicides. However, the herbicidal 7. Metabolite toxicology. There is no contribution (TMRC) of <0.00001 mg/ activity of the sulfonylureas is due to evidence that the metabolites of kg/day is estimated. With the above the inhibition of acetolactase synthase bensulfuron methyl as identified in assumptions which clearly overestimate (ALS), an enzyme only found in plants. either the plant or animal metabolism potential human exposure and are a ALS is part of the biosynthetic pathway studies are of any toxicological most conservative assessment of risk, leading to the formation of branched significance. dietary (food) exposure to bensulfuron chain amino acids. Animals lack ALS 8. Endocrine effects. No special methyl will utilize <0.01% of the RfD. and this biosynthetic pathway. This lack studies investigating potential of ALS contributes to the low toxicity of 2. Dietary exposure—(ii) drinking estrogenic or other endocrine effects of the sulfonylurea compounds in animals. water. Other potential dietary sources of bensulfuron methyl have been There is no evidence to indicate or exposure of the general population to conducted. However, the standard suggest that bensulfuron methyl has any battery of required toxicology studies residues of pesticides are residues in toxic effects on mammals that would be has been completed. These include an drinking water. There is no Maximum cumulative with those of any other evaluation of the potential effects on Contaminant Level established for chemical. reproduction and development, and an residues of bensulfuron methyl. The E. Safety Determination evaluation of the pathology of the petitioner has been advised by the EPA endocrine organs following repeated or that all environmental fate data 1. U S population in general. Based on long-term exposure to doses that far requirements for bensulfuron methyl a complete and reliable toxicity exceed likely human exposures. Based have been satisfied and based on these database, the EPA has adopted an RfD on these studies there is no evidence to studies and the conditions of use, the value of 0.20 mg/kg/day using the NOEL suggest that bensulfuron methyl has an potential for finding significant of 750 ppm (21.4 and 19.9 mg/kg/day, adverse effect on the endocrine system. bensulfuron methyl residues in water, M/F) from the chronic dog toxicity with the exception of flooded rice fields, study and a hundredfold safety factor. C. Aggregate Exposure is minimal. However, for purposes of Using crop tolerance levels, assuming 1. Dietary exposure—(i) food. For assessing a potential dietary exposure 100% of the crop being treated, a purposes of assessing the potential from water an estimated exposure may drinking water estimate which is clearly dietary exposure under these tolerances, be made using information from a prior an overestimate based on off-label use, an estimate of aggregate exposure is Experimental Use Permit (EUP) which and a complete battery of toxicity data, made using the tolerance on rice grain has since been withdrawn without it is concluded that aggregate exposure at 0.02 ppm and crayfish at 0.05 ppm. prejudice. Under this EUP bensulfuron to bensulfuron methyl will utilize The potential exposure is obtained by methyl was evaluated as an aquatic significantly less than 0.1% of the RfD multiplying the tolerance level residues vegetation management herbicide for either the entire U.S. population or by the consumption data which applied directly to water at a rate any of the population subgroups for estimates the amount of rice, rice identical to it’s current registered use in which consumption data is available, products and crayfish eaten by various rice. With this prior EUP, a temporary including infants and children. EPA population subgroups. Rice straw is fed tolerance for bensulfuron methyl generally has no concern for exposure to animals, thus exposure of humans to residues in potable water of 0.1 ppm below 100% of the RfD because the RfD residues of rice straw might result if was established. Assuming this extreme represents the level at or below which such residues are transferred to meat, case scenario with residues at this daily aggregate dietary exposure over a milk, poultry, or eggs. However, based tolerance level and using a consumption lifetime will not pose appreciable risk to on the results of livestock metabolism figure of 2 liters per day of drinking human health. Thus, DuPont believes studies in which no quantifiable water (consistent with the National that there is a reasonable certainty that residues were reported when feeding Primary Drinking Water Regulations no harm will result from aggregate levels were approximately 500X the —Synthetic Organic and Inorganic exposure to bensulfuron methyl potential dietary burden from feeding Chemicals, (56 FR 3526, January 30, residues. bensulfuron methyl treated rice straw, 1991)), a theoretical maximum residue 2. Infants and children. In assessing the EPA has concluded that there is no contribution (TMRC) of <0.000004 mg/ the potential for additional sensitivity of reasonable expectation that measurable kg/day was calculated (calculated and infants and children to residues of residues of bensulfuron methyl will reported by the California Department of bensulfuron methyl, data from the occur in meat or milk. Rice straw is not Food and Agriculture, Division of Pest previously discussed developmental a poultry feed item, thus no residues are Management, April, 1989). With the and reproduction toxicity studies were expected in poultry or eggs. In above assumptions which would now considered. Developmental studies are consideration of pesticide petition reflect an off-label use of bensulfuron designed to evaluate adverse effects on 4F4367 CBTS has concluded that methyl, and therefore clearly the developing organism resulting from crayfish do not constitute a significant overestimate potential human exposure, pesticide exposure during pre-natal livestock feed item, and that no dietary (drinking water) exposure to development. Reproduction studies additional secondary residues in animal bensulfuron methyl would still only provide information relating to commodities are anticipated from the utilize <0.01% of the RfD. reproductive and other effects on adults Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27037 and offspring from pre-natal and post- amendment to the directions for use for the tolerance need not be changed. An natal exposure to the pesticide. Based Londax* herbicide, to reduce the adequate amount of geographically on the weight of these data, DuPont herbicides application pre-harvest representative crop field trial residue believes that bensulfuron methyl is not interval from 80 to 60 days. EPA has data support the amended registration a reproductive toxicant. Developmental determined that the petition contains request and show that with the 60–day effects observed in the absence of data or information regarding the PHI, bensulfuron methyl residues will maternal toxicity were minimal, and elements set forth in section 408(d)(2); not exceed the proposed tolerance of 0.3 were only observed in the rat and at a however, EPA has not fully evaluated ppm on rice straw. An adequate dose that far exceeds any expected the sufficiency of the submitted data at bensulfuron methyl rice processing human exposure. FFDCA section 408 this time or whether the data supports study using rice bearing detectable provides that EPA may apply an granting of the petition. Additional data residues following an exaggerated 5X additional safety factor for infants and may be needed before EPA rules on the application shows that bensulfuron children in the case of threshold effects petition. methyl does not concentrate in rice to account for pre- and post-natal An adequately validated analytical bran, hulls, and polished rice; thus no toxicity and the completeness of the method is available for enforcement tolerances on these commodities are database. Based on current toxicological purposes. required. data requirements, the database for A. Residue Chemistry B. Toxicological Profile bensulfuron methyl relative to pre-and 1. Plant metabolism. The qualitative post-natal effects for children is 1. Acute toxicity. Bensulfuron methyl nature of the residues of bensulfuron complete. Further, as the NOEL of 20 technical has been placed in EPA methyl in rice is adequately understood. mg/kg/day from the 1–year dog study Toxicity Category III for acute dermal Metabolism studies with bensulfuron with bensulfuron methyl which was toxicity based on the test article being methyl indicate the major metabolic used to calculate the RfD (discussed nonlethal and nonirritating at the limit pathway being oxidative o-dealkylation above), is already lower than any of the dose of 2,000 mg/kg (highest dose of the parent to a desmethyl metabolite. NOEL’s defined in the developmental tested). Bensulfuron methyl has been The desmethyl metabolite is cleaved at and reproductive toxicity studies with placed in Category IV for the remaining the C-N bond to form sulfonamide bensulfuron methyl, an additional safety which quickly undergoes ring closure acute toxicity tests based on the factor is not warranted. As stated above, forming homosaccharin; the end following: a rat acute oral study with an aggregate exposure assessments utilized product. Hydroxylation of the 5 position LD50 of > 5,000 mg/kg; a rat acute significantly less than 0.1% of the RfD of the pyrimidine ring forms a hydroxyl inhalation study with an LC50 of > 5.0 for either the entire U.S. population or metabolite which can also be cleaved to mg/l; and primary eye and dermal any of the population subgroups for form sulfonamide. An alternative irritation tests that demonstrated no which consumption data was available, pathway is the direct cleavage of the C- significant irritation in the rabbit. A including infants and children. N bond in the parent to sulfonamide. dermal sensitization test with Therefore, DuPont believes that it may One side reaction may lead to the bensulfuron methyl technical in guinea be concluded that there is reasonable formation of a free acid metabolite. pigs demonstrated no significant effects. certainty that no harm will result to CBTS previously concluded that due to Based on these results, DuPont believes infants and children from aggregate the very low level of total residue, the that bensulfuron methyl represents a exposure to bensulfuron methyl small percentage of the hydroxyl and minimal acute toxicity risk. residues. free acid metabolites present, and no 2. Genotoxicity. Bensulfuron methyl F. International Tolerances expressed concerns over the low levels technical was negative (non-mutagenic) of residue in rice plants for in the Ames microbial mutation assay There are no Canadian, Mexican, or homosaccharin, sulfonamide, and the using four strains of Salmonella Codex MRLs/ tolerances for bensulfuron desmethyl metabolite, the only residue typhimurium and in a hypoxanthine- methyl on rice straw. Compatibility is of concern in rice plants (grain and guanine phosphoribosyl transferase not a problem at this time. straw) was the parent herbicide, gene mutation assay using Chinese 2. E. I. DuPONT bensulfuron methyl. In consideration of hamster ovary cells. In an in vivo bone PP 5F4490 CBTS has again concluded marrow chromosome study in which PP 5F4490 that the only residue of concern is the rats were dosed with 0, 500, 1,500 or EPA has received a pesticide petition parent, bensulfuron methyl. 5,000 mg/kg of bensulfuron methyl (PP) 5F4490 pursuant to section 408(d) 2. Analytical method. There is an technical, no dose related toxicity or of the Federal Food, Drug, and Cosmetic adequately validated practical analytical effects on mitotic index or chromosome Act, as amended, 21 U.S.C. Section method available using HPLC-UV with aberrations were observed. In an in vitro 346a(d), by the Food Quality Protection column and eluent switching, to sister chromatid exchange assay Chinese Act of 1996 (Pub. L. 104-170, 110 Stat. measure levels of bensulfuron methyl in hamster ovary cells were dosed with 1489) from E. I. DuPont de Nemours and or on rice with a limit of quantitation bensulfuron methyl technical at Co., Inc. (DuPont), Barley Mill Plaza, that allows monitoring of rice grain and concentrations ranging from 0.135 to 2.7 P.O. Box 80083, Wilmington, DE 19880– straw at or above tolerance levels. EPA mM. A slight (1.4 fold) increase in sister 0038, proposing to amend 40 CFR has provided information on this chromatid exchanges was observed in 180.445 by amending the existing method to the Food and Drug the nonactivated system at the tolerance for residues of the herbicide Administration for future publication in maximum concentration; however, a bensulfuron methyl (methyl-2[[[[[(4,6- PAM II. negative response was observed in the dimethoxy- pyrimidin-2- 3. Magnitude of the residue. Crop activated system at the same yl)amino]carbonyl] field trial residue data from a 60–day concentration. In an in vitro assay to amino]sulfonyl]methyl]benzoate) in or PHI study shows that the established assess unscheduled DNA synthesis in on the raw agricultural commodity rice bensulfuron methyl tolerance on rice primary rat hepatocytes, bensulfuron straw from 0.05 ppm to 0.3 ppm. The grain of 0.02 ppm will not be exceeded methyl technical was negative. Based on petitioner has also proposed an when Londax* is used as directed, and the weight of these data, DuPont 27038 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices believes that bensulfuron methyl is 10,000 ppm, the NOEL was 1,000 ppm and 460 mg/kg/day, M/F). A 2–year neither genotoxic nor mutagenic. (132 and 133 mg/kg/day, M/F) and the combined chronic toxicity and 3. Reproductive and developmental LEL was 3,000 ppm (387 and 407 mg/ oncogenicity study in rats was toxicity. A two generation, 4 litter kg/day, M/F) based on fatty deposition conducted with bensulfuron methyl reproduction study with CD rats treated in the cortico-medullary junction of the technical at dietary levels of 0, 50, 750 at dietary levels of 0, 50, 750, or 7,500 adrenals in females, and centrilobular and 7,500 ppm. Bensulfuron methyl ppm of bensulfuron methyl failed to hepatocyte swelling and increased liver caused little toxicity at the doses used reveal any evidence suggestive of an weights in males and females. In a 90– in this study. The systemic NOEL was adverse effect on reproductive potential. day feeding study in dogs conducted 750 ppm (30 and 40 mg/kg/day, M/F) A reproductive NOEL was demonstrated with bensulfuron methyl technical at and the systemic LEL was 7,500 ppm at the highest dose tested of 7,500 ppm dietary levels of 0, 100, 1,000, and (309 and 405 mg/kg/day, M/F) based on (309 and 405 mg/kg/day in males and 10,000 ppm, the NOEL was 1,000 ppm decreased body weight gain in females, females respectively). In a (32.1 and 36.3 mg/kg/day, M/F) and the increased BUN and creatinine in males, developmental toxicity study with LEL was 10,000 ppm (340 and 360 mg/ diffuse fatty changes in male livers, and bensulfuron methyl technical, pregnant kg/day, M/F) based on elevated alkaline centrilobular hepatocellular rats were administered oral doses of 0, phosphatase and alanine hypertrophy and centrilobular 50, 500 or 2,000 mg/kg/day on gestation aminotransferase (ALT or SGPT), hepatocyte cytoplasmic basophilia days 7–16. There were no indications of elevated liver weights, gross liver margination in both sexes. Although compound related teratogenicity or enlargement and discoloration, and effects were minimal to mild for chronic maternal effects at any dose. Fetuses microscopic findings of gall bladder feeding/oncogenicity studies with from the 200 mg/kg group exhibited calculus, bile stasis, centrilobular bensulfuron methyl, these studies have signs of minimal toxicity, which hepatocyte swelling, and vacuolation of been found acceptable by EPA as noted included an increased incidence of the seminiferous tubules at the highest in the New Chemical Standard minor skeletal variations. These dose tested. Toxicology Chapter for DPX-F5384 consisted of extra ossification centers in 5. Chronic toxicity/oncogenicity. A 1– (bensulfuron methyl) - ‘‘because of the the lumbar region and incompletely mild toxicity and lack of oncogenic year feeding study in dogs was ossified sternebrae and hyoid. The fetal response at substantial maximum doses conducted with bensulfuron methyl NOEL was 500 mg/kg/day based on in the chronic and subchronic studies in technical at dietary levels of 0, 50, 750, these observations at the high dose. In rats and mice. There was also a lack of and 7,500 ppm. Very little toxicity and a developmental toxicity study with an oncogenic response in structurally no mortality were observed in this bensulfuron methyl technical, pregnant related chemicals.’’ rabbits were administered oral doses of study. Gross findings suggest that 6. Animal metabolism. Disposition 0, 30, 300 or 1,500 mg/kg/day on bensulfuron methyl may have directly and metabolism of bensulfuron methyl gestation days 7–19. Clinical signs of irritated the oral mucosa, especially in were tested in male and female rats at maternal toxicity and some decrease in the high dose males and females. The oral doses of 16 an 2,000 mg/kg. fetal weight gain at the high dose major target organ was the liver as Absorption of the radiolabelled test defined maternal and fetotoxic NOEL’s demonstrated by elevated alkaline article from the gut was nearly total at at 300 mg/kg/day. There were no dose phosphatase and SGPT (ALT), elevated both dose levels. The major elimination related fetal malformations or liver weights, and microscopic findings route was urine for the low- dose groups variations. A teratogenic NOEL of 1,500 of brown pigment in the biliary and feces for the high-dose groups. No canaliculi of the liver at the highest dose mg/kg/day was defined. Based on the measurable quantities of CO2 or volatile weight of these data, DuPont believes tested. The defined systemic NOEL is metabolites were released from the that bensulfuron methyl was not a 750 ppm (21.4 and 19.9 mg/kg/day, M/ lungs. Minute quantities of radioactivity reproductive toxicant. Developmental F) and the systemic LEL is 7,500 ppm (2.1%) were distributed to the body effects observed in the absence of (237.3 and 222.6 mg/kg/day, M/F). A 2– tissues, chiefly the gastrointestinal tract. maternal toxicity were minimal, were year combined chronic toxicity and Approximately half the administered only observed in the rat and had a oncogenicity study in mice was radioactivity was eliminated by 24 clearly defined NOEL. This NOEL, 500 conducted with bensulfuron methyl hours in the low-dose groups, and 48 mg/kg/day, far exceeds any expected technical at dietary levels of 0, 10, 150, hours in the high dose groups. Nearly human occupational or consumer 2,500 and 5,000 ppm. Very little toxicity 99% was eliminated by the time of exposure. was observed in this study. There were sacrifice at 96 hours. This study 4. Subchronic toxicity. In a 90–day no dose-related effects on mortality, indicates that bensulfuron methyl has feeding study in rats conducted with clinical signs, body weights, food low toxicity and does not accumulate bensulfuron methyl technical at dietary consumption, or food efficiency. The within the body. The major compound levels of 0, 100, 1,500, and 7,500 ppm, systemic NOEL was 2,500 ppm (226 and eliminated in urine and feces was ODS the NOEL was 1,500 ppm (93 and 111 227 mg/kg/day, M/F) and the systemic DPX-F5384 (desmethyl metabolite), mg/kg/day, M/F) and the LEL was 7,500 LEL was 5,000 ppm (455 and 460 mg/ formed by demethylation of the ppm (474 and 567 mg/kg/day, M/F) kg/day, M/F) based on reduced water pyrimidine ring. The parent compound based on increased cholesterol, slight consumption; increased alkaline was found in feces but not in urine. reductions in erythrocytes among males, phosphatase, SGOT, SGPT, and total 7. Metabolite toxicology. There is no slightly elevated liver weights, and cholesterol; enlarged liver, abdominal evidence that the metabolites of reduced uptake of stain in the cavity ascites, and benign nodules and bensulfuron methyl as identified in cytoplasm of liver cells fixed for masses in the liver; increased liver either the plant or animal metabolism histological evaluation in both sexes. weights; centrilobular hepatocyte studies are of any toxicological The latter was not considered to be swelling, focal hepatocellular necrosis, significance. associated with an adverse effect. In a and increased brown pigment 8. Endocrine effects. No special 90–day feeding study in mice conducted deposition of stellate cells in the liver. studies investigating potential with bensulfuron methyl technical at There were no oncogenic effects found estrogenic or other endocrine effects of dietary levels of 0, 300, 1,000, 3,000 and at the maximum dose of 5,000 ppm (455 bensulfuron methyl have been Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27039 conducted. However, the standard have been satisfied and based on these database, the EPA has adopted an RfD battery of required toxicology studies studies and the conditions of use, the value of 0.20 mg/kg/day using the NOEL has been completed. These include an potential for finding significant of 750 ppm (21.4 and 19.9 mg/kg/day, evaluation of the potential effects on bensulfuron methyl residues in water, M/F) from the chronic dog toxicity reproduction and development, and an with the exception of flooded rice fields, study and a hundredfold safety factor. evaluation of the pathology of the is minimal. However, for purposes of Using crop tolerance levels, assuming endocrine organs following repeated or assessing a potential dietary exposure 100% of the crop being treated, a long-term exposure to doses that far from water an estimated exposure may drinking water estimate which is clearly exceed likely human exposures. Based be made using information from a prior an overestimate based on off-label use, on these studies there is no evidence to Experimental Use Permit (EUP) which and a complete battery of toxicity data, suggest that bensulfuron methyl has an has since been withdrawn without it is concluded that aggregate exposure adverse effect on the endocrine system. prejudice. Under this EUP bensulfuron to bensulfuron methyl will utilize methyl was evaluated as an aquatic C. Aggregate Exposure significantly less than 0.1% of the RfD vegetation management herbicide for either the entire U.S. population or 1. Dietary exposure--(i) food. For applied directly to water at a rate any of the population subgroups for purposes of assessing the potential identical to it’s current registered use in which consumption data is available, dietary exposure under these tolerances, rice. With this prior EUP, a temporary including infants and children. EPA an estimate of aggregate exposure is tolerance for bensulfuron methyl generally has no concern for exposure made using the tolerance on rice grain residues in potable water of 0.1 ppm below 100% of the RfD because the RfD at 0.02 ppm. The potential exposure is was established. Assuming this extreme represents the level at or below which obtained by multiplying the tolerance case scenario with residues at this daily aggregate dietary exposure over a level residues by the consumption data tolerance level and using a consumption lifetime will not pose appreciable risk to which estimates the amount of rice or figure of 2 liters per day of drinking human health. Thus, DuPont believes rice products eaten by various water (consistent with the National that there is a reasonable certainty that population subgroups. Rice straw is fed Primary Drinking Water Regulations -- no harm will result from aggregate to animals, thus exposure of humans to Synthetic Organic and Inorganic exposure to bensulfuron methyl residues of rice straw might result if Chemicals, (56 FR 3526, January 30, residues. such residues are transferred to meat, 1991)), a theoretical maximum residue 2. Infants and children. In assessing milk, poultry, or eggs. However, based contribution (TMRC) of <0.000004 mg/ the potential for additional sensitivity of on the results of livestock metabolism kg/day was calculated (calculated and infants and children to residues of studies in which no quantifiable reported by the California Department of bensulfuron methyl, data from the residues were reported when feeding Food and Agriculture, Division of Pest previously discussed developmental levels were approximately 500X the Management, April, 1989). With the and reproduction toxicity studies were potential dietary burden from feeding above assumptions which would now considered. Developmental studies are bensulfuron methyl treated rice straw, reflect an off-label use of bensulfuron designed to evaluate adverse effects on the EPA has concluded that there is no methyl, and therefore clearly the developing organism resulting from reasonable expectation that measurable overestimate potential human exposure, pesticide exposure during pre-natal residues of bensulfuron methyl will dietary (drinking water) exposure to development. Reproduction studies occur in meat or milk. Rice straw is not bensulfuron methyl would still only provide information relating to a poultry feed item, thus no residues are utilize <0.01% of the RfD. expected in poultry or eggs. There are 3. Non-dietary exposure. Bensulfuron reproductive and other effects on adults no other established tolerances or methyl is not registered for any use and offspring from pre-natal and post- registered uses for bensulfuron methyl which could result in non-occupational, natal exposure to the pesticide. Based in the United States. Based on a NOEL non-dietary exposure to the general on the weight of these data, DuPont of 750 ppm (21.4 and 19.9 mg/kg/day, population. believes that bensulfuron methyl is not M/F) from the chronic dog toxicity a reproductive toxicant. Developmental study and a hundredfold safety factor, D. Cumulative Effects effects observed in the absence of the reference dose (RfD) is 0.20 mg/kg/ Bensulfuron methyl belongs to the maternal toxicity were minimal, and day. Assuming residues at tolerance sulfonylurea class of compounds. Other were only observed in the rat and at a levels and that 100% of the crop is compounds in this class are registered dose that far exceeds any expected being treated, a theoretical maximum herbicides. However, the herbicidal human exposure. FFDCA section 408 residue contribution (TMRC) of activity of the sulfonylureas is due to provides that EPA may apply an <0.000001 mg/kg/day is calculated. the inhibition of acetolactase synthase additional safety factor for infants and With the above assumptions which (ALS), an enzyme only found in plants. children in the case of threshold effects clearly overestimate potential human ALS is part of the biosynthetic pathway to account for pre- and post-natal exposure and are a most conservative leading to the formation of branched toxicity and the completeness of the assessment of risk, dietary (food) chain amino acids. Animals lack ALS database. Based on current toxicological exposure to bensulfuron methyl will and this biosynthetic pathway. This lack data requirements, the database for utilize <0.01% of the RfD. of ALS contributes to the low toxicity of bensulfuron methyl relative to pre- and 2. Dietary exposure--(ii) drinking the sulfonylurea compounds in animals. post-natal effects for children is water. Other potential dietary sources of There is no evidence to indicate or complete. Further, as the NOEL of 20 exposure of the general population to suggest that bensulfuron methyl has any mg/kg/day from the 1–year dog study residues of pesticides are residues in toxic effects on mammals that would be with bensulfuron methyl which was drinking water. There is no Maximum cumulative with those of any other used to calculate the RfD (discussed Contaminant Level established for chemical. above), is already lower than any of the residues of bensulfuron methyl. The NOEL’s defined in the developmental petitioner has been advised by the EPA E. Safety Determination and reproductive toxicity studies with that all environmental fate data 1. U.S. population in general. Based bensulfuron methyl, an additional safety requirements for bensulfuron methyl on a complete and reliable toxicity factor is not warranted. As stated above, 27040 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices aggregate exposure assessments utilized record. Information not marked List of Subjects significantly less than 0.1% of the RfD confidential may be disclosed publicly Environmental protection, for either the entire U.S. population or by EPA without prior notice. All written Agricultural commodities, Food any of the population subgroups for comments will be available for public additives, Feed additives, Pesticides and which consumption data was available, inspection in Rm. 1132 at the address pests, Reporting and recordkeeping including infants and children. given above, from 8:30 a.m. to 4 p.m., requirements. Therefore, DuPont believes that it may Monday through Friday, excluding legal Dated: May 7, 1997. be concluded that there is reasonable holidays. certainty that no harm will result to FOR FURTHER INFORMATION CONTACT: By James Jones, infants and children from aggregate mail: Joanne Miller, PM 23, Registration Acting Director, Registration Division, Office exposure to bensulfuron methyl Division (7505C), Office of Pesticide of Pesticide Programs. residues. Programs, Environmental Protection Summaries of Petitions F. International Tolerances Agency, 401 M St., SW., Washington, DC 20460. Office location and telephone Petitioner summaries of the pesticide There are no Canadian, Mexican, or number: Rm. 237, CM #2, 1921 Jefferson petitions are printed below as required Codex MRLs/ tolerances for bensulfuron Davis Hwy, Arlington, VA 22202, 703– by section 408(d)(3) of the FFDCA. The methyl on rice straw. Compatibility is 305–6224, e-mail: summaries of the petitions were not a problem at this time. [email protected]. prepared by the petitioners and [FR Doc. 97–12907 Filed 5–15–97; 8:45 am] SUPPLEMENTARY INFORMATION: EPA has represent the views of the petitioners. BILLING CODE 6560±50±F received pesticide petitions as follows EPA is publishing the petition proposing the establishment and/or summaries verbatim without editing amendment of regulations for residues them in any way. The petition summary ENVIRONMENTAL PROTECTION of certain pesticide chemicals in or on announces the availability of a AGENCY various food commodities under section description of the analytical methods available to EPA for the detection and [PF±732; FRL±5717±4] 408 of the Federal Food, Drug, and Comestic Act (FFDCA), 21 U.S.C. 346a. measurement of the pesticide chemical Notice of Filing of Pesticide Petitions EPA has determined that these petitions residues or an explanation of why no contain data or information regarding such method is needed. AGENCY: Environmental Protection the elements set forth in section Agency (EPA). FMC Corporation 408(d)(2); however, EPA has not fully ACTION: Notice. evaluated the sufficiency of the PP 6G4615 SUMMARY: This notice announces the submitted data at this time or whether EPA has received a pesticide petition initial filing of pesticide petitions the data supports granting of the (PP 6G4615) from FMC Corporation, proposing the establishment of petition. Additional data may be needed 1735 Market St., Philadelphia, PA regulations for residues of certain before EPA rules on the petition. 19103, proposing pursuant to section pesticide chemicals in or on various The official record for this notice of 408(d) of the Federal Food, Drug and food commodities. filing, as well as the public version, has Cosmetic Act (FFDCA), 21 U.S.C. DATES: Comments, identified by the been established for this notice of filing 346a(d), to amend 40 CFR part 180 by docket control number PF–732, must be under docket control number [PF–732] establishing a temporary tolerance for received on or before June 16, 1997. (including comments and data the combined residue of the herbicide ADDRESSES: By mail submit written submitted electronically as described carfentrazone-ethyl (ethyl-α-2-dichloro- comments to: Public Information and below). A public version of this record, 5-[4-(difluoromethyl)-4,5-dihydro-3- Records Integrity Branch, Information including printed, paper versions of methyl-5-oxo-1H-1,2,4-triazol-1-yl]-4- Resources and Services Division electronic comments, which does not fluorobenzene-propanoate) and its major (7506C), Office of Pesticides Programs, include any information claimed as CBI, wheat metabolites: carfentrazone-ethyl Environmental Protection Agency, 401 is available for inspection from 8:30 chloropropionic acid (α, 2-dichloro-5-[4- M St., SW., Washington, DC 20460. In a.m. to 4 p.m., Monday through Friday, difluoromethyl)-4,5-dihydro-3-methyl-5- person bring comments to: Rm. 1132, excluding legal holidays. The official oxo-1H-1,2,4-triazol-1-yl]-4- CM #2, 1921 Jefferson Davis Highway, record is located at the address in fluorobenzenepropanoic acid), 3- Arlington, VA. ‘‘ADDRESSES’’ at the beginning of this hydroxymethyl-F8426-chloropropionic Comments and data may also be document. acid (α, 2-dichloro-5-[4-difluoromethyl)- submitted electronically by following Electronic comments can be sent 4,5-dihydro-3-hydroxymethyl-5-oxo-1H- the instructions under directly to EPA at: 1,2,4-triazol-1-yl]-4- ‘‘SUPPLEMENTARY INFORMATION.’’ [email protected] fluorobenzenepropanoic acid) and 3- No confidential business information desmethyl- F8426 chloropropionic acid should be submitted through e-mail. Electronic comments must be (α, 2-dichloro-5-[4-difluoromethyl)-4,5- Information submitted as a comment submitted as an ASCII file avoiding the dihydro-5-oxo-1H-1,2,4-triazol-1-yl]-4- concerning this document may be use of special characters and any form fluorobenzenepropanoic acid) in or on claimed confidential by marking any of encryption. Comment and data will wheat raw agricultural commodities: 0.2 part or all of that information as also be accepted on disks in ppm in or on wheat hay, 0.2 ppm in or ‘‘Confidential Business Information’’ Wordperfect 5.1 file format or ASCII file on wheat straw, 0.2 ppm in or on wheat (CBI). CBI should not be submitted format. All comments and data in grain; and establishing tolerance for through e-mail. Information marked as electronic form must be identified by combined residues of the herbicide CBI will not be disclosed except in the docket number [PF–732] and carfentrazone-ethyl (ethyl-α-2-dichloro- accordance with procedures set forth in appropriate petition number. Electronic 5-[4-(difluoromethyl)-4,5-dihydro-3- 40 CFR part 2. A copy of the comment comments on this notice may be filed methyl-5-oxo-1H-1,2,4-triazol-1-yl]-4- that does not contain CBI must be online at many Federal Depository fluorobenzene-propanoate) and its two submitted for inclusion in the public Libraries. major corn metabolites: carfentrazone- Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27041 ethyl chloropropionic acid (α, 2- crop has less than eight leaves, and the and on any fodder and grain sample was dichloro-5-[4-difluoromethyl)-4,5- weeds are less than four inches tall an estimated 0.01 ppm. No detectable dihydro-3-methyl-5-oxo-1H-1,2,4- when the product is applied. Crops such residues of carfentrazone-ethyl or its triazol-1-yl]-4-fluorobenzenepropanoic as corn and wheat are tolerant to the metabolites were found in any fraction acid), and 3-desmethyl-F8426 product at use rates which control of corn treated. Based on the residue chloropropionic acid (α, 2-dichloro-5-[4- selected weeds. The product is mixed in results, there was no concentration of difluoromethyl)-4,5-dihydro-5-oxo-1H- water or liquid nitrogen fertilizer used carfentrazone-ethyl and its metabolites 1,2,4-triazol-1-yl]-4- as the carrier. A nonionic surfactant or into any of the processed parts. fluorobenzenepropanoic acid) in or on liquid nitrogen fertilizer is mixed with 4. Animal feeding. There is no need corn raw agricultural commodities: 0.15 the spray solution to enhance weed for tolerances in animal meat, milk, ppm in or on corn forage, 0.15 ppm in control. Spray volumes range from 5-40 poultry or eggs since there is no or on corn fodder, 0.15 ppm in or on gallons per acre. Other herbicides may reasonable expectation of residues in corn grain. be tank mixed with carfentrazone-ethyl these materials. This is based on the EPA has determined that the petition to broaden the weed control spectrum. results of cow feeding and poultry contains data or information regarding A. Residue Chemistry metabolism studies, as well as the plant the elements set forth in section metabolism and crop rotation studies. 408(d)(2); however, EPA has not fully 1. Plant metabolism. The qualitative Transfer factors are extremely low and evaluated the sufficiency of the nature of the residues in plants and maximum expected total residues in submitted data at this time or whether animals is adequately understood. meat, milk, poultry and eggs would be the data supports granting of the Residues of carfentrazone-ethyl do not below the method limit of detection petitions. Additional data may be concentrate in the processed (LOD). The LOD of the methods is, needed before EPA rules on the commodities. There are no Codex therefore, higher than any individual petitions. The proposed analytical maximum residue levels established for analyte in any of the matrices. Based on method is GC-MS and is available for residues of carfentrazone-ethyl on this, since there is no expectation of enforcement purposes. wheat, corn or soybeans. finite residues in meat, milk, poultry 2. Analytical method. There is a As required by section 408(d) of the and eggs, no tolerances are being practical analytical method available FFDCA, as recently amended by the proposed for these commodities. The using GC-MS, for detecting and Food Quality Protection Act (FQPA) proposed crop tolerance levels are measuring levels of carfentrazone-ethyl FMC included in the petition a adequate to cover residues likely to be summary of the petition and in or on food with a limit of detection present from the proposed use of authorization for the summary to be that allows monitoring of food with carfentrazone-ethyl. Therefore, no published in the Federal Register in a residues at or above the levels set in special processing to reduce the notice of the receipt of the petition. The these tolerances. residues will be necessary. summary represents the views of FMC; 3. Magnitude of the residue— i. EPA is in the process of evaluating the Wheat. F8426 50DF was applied to 28 B. Toxicological Profile wheat trials in the major wheat growing petition. As required by section EPA has reviewed and accepted over 408(d)(3) EPA is including the summary regions of the United States. Trials were 20 separate toxicology studies in as a part of this notice of filing. EPA conducted on both winter wheat (16 support of temporary tolerances for may have made minor edits to the trials) and spring wheat (12 trials). carfentrazone-ethyl; additional studies summary for the purpose of clarity. Forage samples had total residues Carfentrazone-ethyl is a postemergent ranging from ND (<0.1 ppm) to 0.64 have been submitted to EPA for review. herbicide which controls a broad ppm. The maximum total residue in/on Carfentrazone-ethyl is not a carcinogen, spectrum of broadleaf weeds at very low any hay sample was 0.24 ppm. The developmental toxin or a mutagen and field application rates. Carfentrazone- maximum total residue found on any has low oral and dermal toxicity to ethyl is particularly effective on straw sample was an estimated 0.05 mammals. The following mammalian Velvetleaf (Abutilon theophrasti), ppm. No detectable residues (>0.01 toxicity studies have been conducted to Russian Thistle (Salsola kali), Pigweeds ppm) of carfentrazone-ethyl or any of its support the tolerance of carfentrazone- (Amaranthus spp.), Morningglories metabolites were found in/on any grain ethyl: (Ipomea spp.), Lambsquarters sample. A rat acute oral study with an LD50 of (Chenopodium album) and Black No detectable residues (>0.01 ppm) of greater than 5,000 mg/kg(male) and Nightshade (Solanum nigrum). It is also carfentrazone-ethyl or its metabolites 5,143 mg/kg (female). effective on sulfonylurea-resistant were found in any of the treated wheat A rat acute dermal LD50 of greater populations of important weeds such as grain or processed commodities. Based than 4,000 mg/kg. Kochia (Kochia scoparia) and Russian on these results, there was no A rat acute inhalation LC50 of greater Thistle (Salsola kali) and on concentration of carfentrazone-ethyl or than 5.09 mg/L/4 hour. imidazolinone- or sulfonylurea-resistant its acid metabolites into any of the A primary eye irritation study in populations of pigweeds. processed parts. rabbits which showed minimal Use site: Corn: Broadleaf weeds ii. Corn. Twenty four field corn trials irritation. (including cocklebur, lambsquarters, were conducted in the major corn A primary dermal irritation study in morningglories, pigweeds, nightshades growing regions of the continental rabbits which showed no irritation. and velevetleaf); Wheat: Broadleaf United States with F8426 50DF. No A primary dermal sensitization study weeds (including wild buckwheat, quantifiable residues (>0.05 ppm) of which showed no sensitization. kochia, lambsquarters, mustards, carfentrazone-ethyl or any of its An acute neurotoxicity study in the nightshades, pigweeds, Russian thistle metabolites were found in the analyses rat with a systemic NOAEL of 500 mg/ and waterhemp). of the treated forage, fodder and grain kg; the NOAEL for neurotoxicity was Use pattern: Carfentrazone-ethyl samples except for two forage samples greater than 2,000 mg/kg (highest dose herbicide is applied postemergence to which had residues of 0.05 and 0.10 tested). young actively growing weeds that have ppm. The maximum total residue in/on A 28–day feeding study in the rat emerged from the soil. Typically, the any corn forage sample was 0.10 ppm with a NOEL of 1,000 ppm (74.6 mg/kg/ 27042 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices day for males; 85.2 mg/kg/day for following is that carfentrazone-ethyl is cumulative with those of any other females). not mutagenic. chemical compounds; thus only the A 90-day feeding study in the rat with Ames Assay: Negative. potential risks of carfentrazone-ethyl are a NOEL of 1,000 ppm (57.9 mg/kg/day Mouse Micronucleus Assay: Negative. considered in this exposure assessment. for males; 72.4 mg/kg/day for females). In vitro Chromosome Aberration - Chronic dietary effects. Based on the A 28–day feeding study in the mouse Negative with activation; Positive available toxicity data, FMC believes with a NOEL of 4,000 ppm (571 mg/kg/ without activation. that the Reference Dose (RfD) for day) for males and a NOEL of 1,000 ppm CHO/HGPRT Forward Mutation carfentrazone-ethyl is 0.03 (143 mg/kg/day) for females. Assay - Negative. milligrams(mg)/kilogram(kg)/day. The A 90–day feeding study in the mouse Unscheduled DNA Synthesis - RfD for carfentrazone-ethyl is based on with a NOEL of 4,000 ppm Negative. the chronic feeding/oncogenicity study (approximately 571 mg/kg/day). C. Aggregate Exposure in rats with a threshold No-Observed A 90–day subchronic neurotoxicity Effect Level (NOEL) of 3 mg/kg/day and study in the rat with a systemic NOEL For purposes of assessing the an uncertainty factor of 100. EPA of 1,000 ppm (59.0 mg/kg/day for males; potential dietary exposure, a recently proposed a tiered approach to 70.7 mg/kg/day for females); the preliminary dietary risk assessment was estimate acute dietary exposure. The neurotoxicity NOEL was greater than conducted based on the Theoretical methods proposed by the EPA were 20,000 ppm (1178.3 mg/kg/day for Maximum Residue Contribution reviewed and supported by the FIFRA males; 1433.5 mg/kg/day for females) (TMRC) from the tolerances for scientific advisory panel (SAP, 1995). which was the highest dose tested. carfentrazone-ethyl on soybeans at 0.1 EPA’s Tier 1 method is based on the A 24–month chronic feeding/ ppm, wheat at 0.2 ppm and corn (field) assumption that residue concentrations oncogenicity study in the rat with a at 0.15 ppm. (The TMRC is a ‘‘worse do not vary. The analysis assumes that chronic toxicity NOEL of 200 ppm (9 case’’ estimate of dietary exposure since all residues have the same magnitude, mg/kg/day) in the male and 50 ppm (3 it is assumed that 100 percent of all typically the highest field trial residue mg/kg/day) in the female. There was no crops for which tolerances are or tolerance value. This value is evidence of an oncogenic response. established are treated and that assumed for all points along the A 4–week range-finding study in dogs pesticide residues are present at the consumption distribution, resulting in a confirmed that the appropriate route of tolerance levels.) At this time the distribution of dietary exposure. administration was by capsule and the dietary exposure to residues of For the acute analysis for top dose selected for the 3–month study carfentrazone-ethyl in or on food will be carfentrazone-ethyl, a Tier 1 analysis was the limit dose of 1,000 mg/kg/day. limited to residues on soybeans, wheat was conducted for the overall US A 90–day feeding study in dogs with and corn. There are no other established population, infants and children 1 to 6 a NOEL of 150 mg/kg/day for both males US tolerances for carfentrazone-ethyl, years of age. The analysis incorporated and females. and there are no registered uses for anticipated residue estimates of 0.1 ppm A 12–month feeding study in dogs carfentrazone-ethyl on food or feed for soybeans, wheat and corn including with a NOEL of 50 mg/kg/day. crops in the US. In conducting this sweet and pop corn. A NOEL of 3 mg/ A mouse oncogenicity study with a exposure assessment, the following very kg /day with a 100-fold uncertainty carcinogenic NOEL greater than 7,000 conservative assumptions were made-- factor was used in the calculation. This ppm (greater than 1,090 mg/kg/day for 100 percent of soybeans, wheat and corn NOEL was derived from the chronic rat males; greater than 1,296 mg/kg/day for will contain carfentrazone-ethyl feeding study and represents an females) based on no evidence of residues and those residues would be at extremely excessive worst case scenario. carcinogenicity at the highest dose the level of the tolerance which result The following margins of exposure tested. in an overestimate of human exposure. (MOE) were calculated (margins of An oral teratology study in the rat Other potential sources of general exposure of 100 or more are considered with a maternal NOEL of 100 mg/kg/ population exposure to residues of satisfactory): day; the developmental NOAEL was pesticides are residues in drinking water greater than 1,250 mg/kg/day. and exposure from non-occupational An oral teratology study in the rabbit sources. Studies have indicated that with a maternal NOEL of 150 mg/kg/ carfentrazone-ethyl will not move into Population Group Margin of Exposure day; the fetal NOEL was greater than groundwater. 300 mg/kg/day (highest dose tested) There is no expectation of non- US Population 3516 since no fetal effects were observed. occupational exposure from any other Infants 1804 A 2–generation reproduction study in source since the current registration Children 1 to 6 2057 the rat with a NOAEL for systemic application is the first for carfentrazone- toxicity of 500 ppm (P1: 120 mg/kg/day ethyl and is limited to commercial These MOEs show that there is no for males and 137 mg/kg/day for production of corn and wheat. The acute dietary risk from carfentrazone- females; F1: 134 mg/kg/day for males potential for non-occupational exposure ethyl. Using the Guidelines for and 146 mg/kg/day for females); the to the general population is, thus, Carcinogen Risk Assessment, reproductive NOEL was greater than insignificant. carfentrazone-ethyl should be classified 4,000 ppm (P1: greater than 323 mg/kg/ EPA is also required to consider the as Group ‘‘E’’ for carcinogenicity -- no day for males and greater than 365 mg/ potential for cumulative effects of evidence of carcinogenicity -- based on kg/day for females; F1: greater than 362 carfentrazone ethyl and other the results of carcinogenicity studies in mg/kg/day for males and greater than substances that have a common two species. There was no evidence of 409 mg/kg/day for females) since mechanism of toxicity. EPA carcinogenicity in an 18–month feeding reproductive parameters were not consideration of a common mechanism study in mice and a 2–year feeding affected at the highest dose tested in the of toxicity is not appropriate at this time study in rats at the dosage levels tested. study. since EPA does not have information to The doses tested are adequate for The weight of the evidence of the indicate that toxic effects produced by identifying a cancer risk. Thus, a cancer mutagenicity database including the carfentrazone-ethyl would be risk assessment is not necessary. Using Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27043 the conservative exposure assumptions to infants and children. Using the SUPPLEMENTARY INFORMATION: FICEMS is described and based on the conservative exposure assumptions a Federal interagency committee that completeness and reliability of the described above, the percent of the RfD meets quarterly to establish effective toxicity data, the aggregate exposure to that will be utilized by aggregate communication between Federal carfentrazone-ethyl will utilize 0.61 exposure to residues of carfentrazone- departments and agencies involved in percent of the RfD for the US ethyl for non-nursing infants (<1 year activities related to emergency medical population. EPA generally has no old) would be 0.38 percent and for services. Further, to strengthen the concern for exposures below 100 children 1-6 years of age would be 1.56 coordination of Federal policies and percent of the RfD. Therefore, based on percent (the most highly exposed programs; promote harmony and avoid the completeness and reliability of the group). Based on the completeness and duplication of efforts; and promote toxicity data and the conservative reliability of the toxicity data and the uniformity of standards and policies exposure assessment, FMC believes that conservative exposure assessment, FMC consistent with existing Federal laws there is a reasonable certainty that no believes that there is a reasonable and regulations regarding emergency harm will result from aggregate certainty that no harm will result to medical services. exposure to residues of carfentrazone- infants and children from aggregate The FICEMS committee consists of a ethyl, including all anticipated dietary exposure to the residues of representative from the following exposure and all other non-occupational carfentrazone-ethyl including all Federal departments: exposures. anticipated dietary exposure. Federal Emergency Management Agency D. Determination of Safety for Infants E. Estrogenic Effects Department of Agriculture and Children Federal Communications Commission No specific tests have been conducted Department of Defense In assessing the potential for with carfentrazone-ethyl to determine General Services Administration additional sensitivity of infants and whether the pesticide may have an Department of Health and Human children to residues of carfentrazone- effect in humans that is similar to an Services ethyl, EPA considers data from effect produced by a naturally occurring Department of Interior developmental toxicity studies in the rat estrogen. Department of Transportation and rabbit and the 2–generation [FR Doc. 97–12911 Filed 5–15–97; 8:45 am] Department of Veterans Affairs reproduction study in the rat. The Other Federal departments as approved developmental toxicity studies are BILLING CODE 6560±50±F by the committee designed to evaluate adverse effects on the developing organism resulting from Dated: May 7, 1997. pesticide exposure during prenatal FEDERAL EMERGENCY Donald G. Bathurst, development. Reproduction studies MANAGEMENT AGENCY Deputy U.S. Fire Administrator. provide information relating to effects [FR Doc. 97–12897 Filed 5–15–97; 8:45 am] on the reproductive capacity of males Fire Administration; Open Meeting: BILLING CODE 6718±08±M and females exposed to the pesticide. Federal Interagency Committee on Developmental toxicity was not Emergency Medical Services (FICEMS) observed in developmental toxicity FEDERAL MARITIME COMMISSION studies using rats and rabbits. In these AGENCY: Federal Emergency studies, the rat and rabbit maternal Management Agency. Notice of Agreement(s) Filed NOELs were 100 mg/kg/day and 150 ACTION: Notice of meeting. mg/kg/day, respectively. The The Commission hereby gives notice developmental NOEL for the rabbit was Name: Federal Interagency Committee of the filing of the following greater than 300 mg/kg/day which was on Emergency Medical Services agreement(s) under the Shipping Act of the highest dose tested and for the rat (FICEMS). 1984. was 600 mg/kg/day based on increased Dates of Meeting: June 5, 1997. Interested parties can review or obtain litter incidences of thickened and wavy Place: Federal Emergency copies of agreements at the Washington, ribs. These two findings are not Management Agency, U.S. Fire DC offices of the Commission, 800 considered adverse effects of treatment Administration, 16825 South Seton North Capitol Street, N.W., Room 962. but related delays in rib development Avenue, Building N, Room 309, Interested parties may submit comments which are generally believed to be Emmitsburg, Maryland 21727. on an agreement to the Secretary, reversible. In a 2–generation Time: 10:00 a.m.–12:00 Noon. Federal Maritime Commission, reproduction study in rats, no Proposed Agenda: Review of March 6, Washington, DC 20573, within 10 days reproductive toxicity was observed 1997 meeting minutes. Discussion of of the date this notice appears in the under the conditions of the study at Senate Bill 238 and a proposal from the Federal Register. 4,000 ppm which was the highest dose previous meeting to establish a Agreement No. 203–011305–004 tested. FFDCA section 408 provides that ‘‘Technology Sub-Committee’’. Reports Title: Tricontinental Service EPA may apply an additional safety from member agency representatives Agreement. factor for infants and children in the and a review and discussion of the Parties: case of threshold effects to account for current ‘‘FICEMS Instruction’’. Cho Yang Shipping Co., Ltd. pre-and post-natal toxicity and the Status: Open to Federal member DSR-Senator Lines. completeness of the database. Based on agencies (voting) and other interested Synopsis: The proposed amendment the current toxicological data parties (non-voting). provides that the parties consent to any requirements, the database relative to FOR FURTHER INFORMATION CONTACT: chartering activities which may be pre- and post-natal effects for children Terry G. Glunt, FICEMS Secretariat, U.S. affected pursuant to the Hanjin/DSR- is complete and an additional Fire Administration, 16825 South Seton Senator Cooperative Management uncertainty factor is not warranted. Avenue, N–315E, Emmitsburg, Agreement (FMC Agreement No. 203– Therefore, the RfD of 0.03 mg/kg/day is Maryland 21727; telephone (301) 447– 011570). The parties have requested a appropriate for assessing aggregate risk 1402. shortened review period. 27044 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Agreement No. 232–011475–003. Parties: Marietta Street, N.W., Atlanta, Georgia Title: Hanjin/Tricon Agreement. Hanjin Shipping Co., Ltd. 30303-2713: Parties: Cho Yang Shipping Co., Ltd. 1. Susma Patel, London, England; Hanjin Shipping Co., Ltd. DSR-Senator Lines. Suketu Madhusudan Patel (Suku), Co Yang Shipping Co., Ltd. Synopsis: The proposed modification London, England; Parimal Kantibhai DSR-Senator Lines. amends article 5.3 of the Agreement to Patel (Perry), London, England; Bharat Synopsis: The proposed modification eliminate restrictions on joint marketing Muljibhai Amin, London, England; and clarifies that the subject Agreement does by Hanjin and DSR-Senator Lines, as Dennis John Lloyd King, Surrey, not preclude DSR-Senator and/or Hanjin authorized in Agreement No. 203– England; collectively, as the Patel from engaging in any activity 011570, the Hanjin/DSR-Senator Group, each to acquire a total of 43.06 (principally joint marketing) authorized Cooperative Management Agreement. percent of the voting shares of First by the Hanjin/ DSR-Senator Cooperative The modification also changes the Bankshares, Inc., Longwood, Florida, Management Agreement (FMC No. 203– address for Hanjin. The parties have and thereby indirectly acquire First 011570). The modification also changes requested shortened review. National Bank of Central Florida, the address for Hanjin. The parties have Agreement No. 232–011538–001. Longwood, Florida. requested shortened review. Title: Tricon/Italia Slot Charter B. Federal Reserve Bank of Kansas Agreement No: 217–011486–002 Agreement. City (D. Michael Manies, Assistant Vice Title: NL/Tricon Agreement. Parties: President) 925 Grand Avenue, Kansas Parties: Italia di Navigazione SpA. (IdN) City, Missouri 64198-0001: P&O Nedlloyd B.V. Cho Yang Shipping Co., Ltd. 1. Danny Biggs, Great Bend, Kansas; Cho Yang Shipping Co. Ltd. DSR-Senator Lines (‘‘D–SEN’’). to acquire an additional 8.37 percent, DRS-Senator Lines (‘‘DSL’’). Synopsis: The proposed amendment for a total of 13 percent; Merlin & Nelva Synopsis: The proposed amendment specifies that nothing in this Agreement Grimes, Great Bend, Kansas, to acquire specifies that nothing in this Agreement shall serve to preclude D–SEN from an additional 15.38 percent, for a total will preclude DSL from engaging in any engaging in any activity authorized by of 20 percent; ED&J, Inc., Great Bend, activity authorized by the Hanjin/DSR- the Hanjin/DSR-Senator Cooperative Kansas, to acquire an addtional 15.37 Senator Cooperative Management Management Agreement (FMC percent, for a total of 20 percent; Ronald Agreement (FMC Agreement No. 203– Agreement No. 203–011570). The & Carol Carr, Great Bend, Kansas, to 011570). The parties have requested a parties have requested a shortened acquire a total of 10 percent; Steven J. shortened review period. review period. Sell, Great Bend, Kansas, to acquire a Agreement No. 232–011501–001. Dated: May 12, 1997. total of 10 percent; Richard Schenk, Title: Hanjin/Tricon Panama By Order of the Federal Maritime Great Bend, Kansas, to acquire a total of Agreement. Commission. 10 percent; Dennis Call, Great Bend, Parties: Joseph C. Polking, Kansas, to acquire a total of 10 percent; and R. Joe Southard, Great Bend, Hanjin Shipping Co., Ltd. (‘‘Hanjin’’) Secretary. Kansas, to acquire a total of 7 percent, Cho Yang Shipping Co., Ltd. [FR Doc. 97–12849 Filed 5–15–97; 8:45 am] DSR-Senator Lines. of the voting shares of First Wakeeney BILLING CODE 6730±01±M Agency, Inc., Great Bend, Kansas, and Synopsis: The proposed amendment thereby indirectly acquire Interstate specifies that nothing in this Agreement Bank, Great Bend, Kansas. will preclude Agreement parties Hanjin FEDERAL RESERVE SYSTEM and DSL from engaging in any activity Board of Governors of the Federal Reserve authorized by the Hanjin/DSR-Senator Change in Bank Control Notices; System, May 12, 1997. Cooperative Management Agreement Acquisitions of Shares of Banks or Jennifer J. Johnson, (FMC Agreement No. 203–011570). The Bank Holding Companies Deputy Secretary of the Board. amendment also reflects an address [FR Doc. 97–12838 Filed 5–15–97; 8:45 am] The notificants listed below have change for Hanjin. The parties have BILLING CODE 6210±01±F requested a shortened review period. applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § Agreement No. 203–011519–002. 225.41 of the Board’s Regulation Y (12 Title: Tricon/Hanjin Transpacific FEDERAL RESERVE SYSTEM CFR 225.41) to acquire a bank or bank Agreement. holding company. The factors that are Parties: Sunshine Act Meeting considered in acting on the notices are Hanjin Shipping Co., Ltd. (‘‘Hanjin’’) set forth in paragraph 7 of the Act (12 TIME AND DATE: 10:00 a.m., Thursday, Cho Yang Shipping Co., Ltd. U.S.C. 1817(j)(7)). May 22, 1997. DSR-Senator Lines (‘‘DSL’’). The notices are available for PLACE: Marriner S. Eccles Federal Synopsis: The proposed amendment immediate inspection at the Federal Reserve Board Building, C Street specifies that nothing in this Agreement Reserve Bank indicated. Once the entrance between 20th and 2lst Streets, will preclude Agreement parties Hanjin notices have been accepted for N.W., Washington, D.C. 20551. and DSL from engaging in any activity processing, they will also be available STATUS: Closed. authorized by the Hanjin/DSR-Senator for inspection at the offices of the Board Cooperative Management Agreement of Governors. Interested persons may MATTERS TO BE CONSIDERED: (FMC Agreement No. 203–011570). The express their views in writing to the 1. Personnel actions (appointments, amendment also reflects an address Reserve Bank indicated for that notice promotions, assignments, change for Hanjin. The parties have or to the offices of the Board of reassignments, and salary actions) requested a shortened review period. Governors. Comments must be received involving individual Federal Reserve Agreement No. 232–011521–002. not later than May 30, 1997. System employees. Title: Hanjin/Tricon Far East Services A. Federal Reserve Bank of Atlanta 2. Any items carried forward from a Slot Charter Agreement. (Lois Berthaume, Vice President) 104 previously announced meeting. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27045

CONTACT PERSON FOR MORE INFORMATION: ADDRESSES: Applications should be sent employability, homelessness, substance Mr. Joseph R. Coyne, Assistant to the to Office of Community Services, abuse, and a host of other health and Board; (202) 452–3204. You may call Administration for Children and related mental health consequences. (202) 452–3207, beginning at Families, Attn: William D. Riley, 5th It is estimated that between 12 approximately 5 p.m. two business days Floor, West Wing, 370 L’Enfant percent and 35 percent of women before this meeting, for a recorded Promenade, SW., Washington, D.C. visiting emergency rooms with injuries announcement of bank and bank 20447. are there because of battering (Randall, holding company applications FOR FURTHER INFORMATION CONTACT: 1990; Abbot, et. al., 1995). Estimates of scheduled for the meeting. William D. Riley (202) 401–5529, James the number of women who are homeless Dated: May 14, 1997. Gray (202) 401–5705 or Trudy Hairston because of battering range from 27 percent (Knickman and Weitzman, Jennifer J. Johnson, (202) 401–5319. 1989) to 41 percent (Bassuk and Deputy Secretary of the Board. SUPPLEMENTARY INFORMATION: Rosenberg, 1988) to 63 percent of all [FR Doc. 97–13087 Filed 5–14–97; 3:31 pm] Note: We Strongly Recommend That States homeless women (D’ercole and BILLING CODE 6210±01±P and Native American Tribes and Tribal Struening, 1990). The significant Organizations Keep a Copy of This Federal correlation between domestic violence Register Notice for Future Reference. The and child abuse (Edelson, 1995; Stark DEPARTMENT OF HEALTH AND Requirements Set Forth in This and Flitcraft, 1988; Strauss and Gelles, HUMAN SERVICES Announcement Will Apply to State and 1990), and the use of welfare by battered Native American Family Violence Program women as an ‘‘economic escape route’’ Grants for FY 1997 Through FY 2000. Administration for Children and (Raphael, 1995) also suggest the need to Families Information Regarding Any Changes in Available Funds, State/Tribal Allocations, coordinate domestic violence [Program Announcement No. 97±06] and Administrative and Reporting intervention activities with those Requirements Will Be Provided by Program addressing child abuse and welfare Family Violence Prevention and Announcement in the Federal Register or by reform activities at the Federal, State Services Program Program Instruction. and local levels. When programs that seek to address AGENCY: Office of Community Services, Part I. Reducing Family and Intimate these issues operate independently of ACF, DHHS. Violence Through Coordinated each other, a fragmented, and ACTION: Prevention and Services Strategies Notice of the availability of consequently less effective, service funding to States and Native American A. The Importance of Coordination of delivery and prevention system may be Tribes and Tribal organizations for Services the result. Coordination and family violence prevention and services. Family and intimate violence has collaboration among the police, SUMMARY: This multi-year serious and far reaching consequences prosecutors, the courts, victim services announcement supersedes Program for individuals, families and providers, child welfare and family Announcement No. OCS 95–04, communities. A recent report from the preservation services, and medical and published January 11, 1995 in Volume National Research Council, mental health service providers is 60, No.7, pages 2769–2780 of the ‘‘Understanding Violence Against needed to provide more responsive and Federal Register. This announcement Women’’ (1996) concludes that, effective services to victims of domestic governs the proposed award of formula ‘‘Women are far more likely than men violence and their families. It is grants under the Family Violence to be victimized by an intimate partner essential that all interested parties are Prevention and Services Act to States (Kilpatrick, et. al., 1992; Bachman, 1994; involved in the design and (including Territories and Insular Areas) Bachman and Saltzman, 1995) * * * It improvement of intervention and and Native American Tribes and Tribal is important to note that attacks by prevention activities. organizations. The purpose of these intimates are more dangerous to women To help bring about a more effective grants is to assist States and Tribes in than attacks by strangers: 52 percent of response to the problem of domestic establishing, maintaining, and the women victimized by an intimate violence, the Department of Health and expanding programs and projects to sustain injuries, compared with 20 Human Services (HHS) urges States and prevent family violence and to provide percent of those victimized by a stranger Native American Tribes receiving funds immediate shelter and related assistance (Bachman and Saltzman, 1995). Women under this grant announcement to for victims of family violence and their are also significantly more likely to be coordinate activities funded under this dependents. killed by an intimate than are men. In grant with other new and existing This announcement sets forth the 1993, 29 percent of female homicide resources for the prevention of family application requirements, the victims were killed by their husbands, and intimate violence and related application process, and other ex-husbands, or boyfriends; only 3 issues. administrative and fiscal requirements percent of male homicide victims were B. On-Going Coordination Efforts for grants in fiscal years (FY) 1997 killed by their wives, ex-wives, or through FY 2000. girlfriends (Federal Bureau of 1. Federal Coordination CLOSING DATES AND APPLICATIONS: Investigation, 1993).’’ In the fall of 1993, a Federal Applications for FY 1997 family The impacts of such family and Interdepartmental Work Group violence grant awards meeting the intimate violence include physical (including the Departments of Health criteria specified in this announcement injury and death of primary or and Human Services, Justice, Education, should be received no later than July 15, secondary victims, psychological Housing and Urban Development, 1997. Grant applications for FY 1998 trauma, isolation from family and Labor, and Agriculture) began working through FY 2000 should be received at friends, harm to children witnessing or together to study cross-cutting issues the address specified below by experiencing violence in homes in related to violence, and to make December 15 of each subsequent fiscal which the violence occurs, increased recommendations for action in areas year. fear, reduced mobility and such as youth development, schools, 27046 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices juvenile justice, family violence, sexual services to work with State welfare will also require a partnership and assault, firearms, and the media. The agencies in providing safety planning collaboration among the police, recommendations formed a framework and services to welfare recipients who prosecutors, the courts, shelter and for ongoing policy development and may be battered. We believe the victims service providers, and medical coordination within and among the expertise and perspective of the family and mental health professionals. OJP agencies involved. violence prevention and services field expects that States will draw into the Based on these initial coordination will be invaluable as decisions are made planning process the experience of efforts, a new interdepartmental strategy on how best to use these funds and existing domestic violence task forces was developed for implementing the design service delivery improvements. and coordinating councils such as the programs and activities enacted in the State Agencies and the State Domestic (a) Law Enforcement and Prosecution Violent Crime Control and Law Violence Coalitions, as well as Grants To Reduce violence Crimes Enforcement Act of 1994 (Crime Bill). A representatives from key components of Against Women Steering Committee on Violence Against the criminal justice system and other Women is currently coordinating Enacted as part of the Violence professionals who interact with women activities among family violence-related Against Women Act (VAWA), this law who are victims of violence. programs and across agencies and provides an opportunity to respond to departments. Also, in 1996, the violence against women in a (b) Family Preservation and Family Departments of Justice and Health and comprehensive manner. It emphasizes Support Services Program Human Services announced the the development of Federal, State and In August 1993, Congress created a formation of a National Advisory local partnerships to assure that new program entitled ‘‘Family Council on Violence Against Women to offenders are prosecuted to the fullest Preservation and Support Services’’ help coordinate efforts, assist victims, extent of the law, that crime victims (Title IV–B of the Social Security Act). and advise the Federal Government on receive the services they need and the Funds under this program are awarded implementation of the Violence Against dignity they deserve, and that all parts to State Child Welfare agencies to Women Act (VAWA). of the criminal justice system have provide needed services and to help training and funds to respond bring about better coordination among 2. Opportunities for Coordination at the effectively to both offenders and crime child and family services programs at State and Local Level victims. the state and local level. Many The major domestic violence The Office of Justice Programs (OJP) jurisdictions are including domestic intervention and prevention activities in the Department of Justice (DOJ) violence programs and advocacy funded by the Federal government focus implemented a new formula grant organizations in their on-going planning on law enforcement and justice system program, known informally as the Stop and services system to better address the strategies; victim protection and Violence Against Women Formula needs of victims of family violence and assistance services; and prevention Grants (Services, Training, Officers, their dependents. activities, including public awareness prosecution) which made available $26 Family preservation services include and education. Federal programs also million to States in FY 1995, $130 intensive services assisting families at- serve related needs, such as housing, million to States in FY 1996, and $145 risk or in crisis, particularly in cases family preservation and child welfare million to States in FY 1997. where children are at risk of being services, substance abuse treatment, and States must allocate at least 25 placed out of the home. Victims of job training. percent of their funds to law family violence and their dependents We want to call to your attention two enforcement activities, at least 25 are considered at-risk or in crisis. major programs, enacted by Congress in percent to prosecution activities, and at Family support services include the past few years, that provide new least 25 percent to nonprofit community-based preventive activities funds to expand services and which nongovernmental victims services, designed to strengthen parents’ ability require the on-going involvement of including underserved populations. to create safe, stable, and nurturing State agencies, Indian tribes, State These grant funds are to help develop, home environments that promote Domestic Violence Coalitions, and strengthen, and implement effective law healthy child development. These others interested in prevention and enforcement, prosecution, and victim services also include assistance to services for victims of domestic assistance strategies. Eligibility for this parents themselves through home violence. These programs are: Law program is limited to the States, visiting and activities such as drop-in Enforcement and Prosecution Grants to Territories and the District of Columbia. center programs and parent support Reduce Violent Crimes Against Women, The Violence Against Women Act groups. administered by the Department of stipulates that four percent of the funds Justice, (also known as the STOP appropriated each year for the STOP (c) The Personal Responsibility and grants), and the Family Preservation and program will be awarded to Indian tribal Work Opportunity Reconciliation Act of Support Services program, administered governments. The OJP grant regulations 1996 (Welfare Reform) by DHHS. Both programs (described and program guidelines will address the On August 22, 1996, Public Law 104– below) require the State agencies and requirements of both the formula grant 193 was enacted which abolished Aid to Indian tribes administering these and the Indian grant programs. Families with Dependent Children programs to conduct an inclusive, In order to be eligible for DOJ funds, (AFDC) and other related programs. broad-based, comprehensive planning States must develop a plan for Under this new law, the authority and process at the State and community implementation. As a part of the responsibility to determine which level. planning process, the Violence Against families will receive assistance (cash In addition, the Personal Women Act requires that States must and/or services) and how much under Responsibility and Work Opportunity consult with nonprofit, the new Temporary Assistance to Needy Reconciliation Act of 1996, the Welfare nongovernmental victims’ services Families (TANF) Block Grant, (which Reform law, offers an opportunity for programs including sexual assault and replaces AFDC) has been shifted from those organizations providing domestic domestic violence victim services the Federal government to the States; violence intervention and prevention programs. Such a coordinated approach States will also decide which programs Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27047 will exist within their States to serve Systems Advocacy is work to effect maintenance, and expansion of eligible families. policy and procedural change in order programs and projects to prevent Under this new law, each State must to improve the institutional response to incidents of family violence and to submit a State plan to the Department domestic violence (e.g., developing provide immediate shelter and related of Health and Human Services in order protocols for medical or mental health assistance for victims of family violence to receive TANF block grant funds. The providers, training for those who work and their dependents. plan must certify that local government in the criminal and civil justice, welfare During FY 1996, 220 grants were and private sector organizations have ,child protective services, legal services, made to States and Native American been consulted about the plan and have and educational systems. The Tribes. The Department also made 52 had at least 45 days in which to development of coordinated community family violence prevention grant awards comment. There are two areas of the Act interventions, public policy advocacy to nonprofit State domestic violence which specifically refer to domestic directed at changing State/local laws, coalitions. violence: (1) States are allowed to policies, practices related to domestic In addition, the Department supports exempt 20 percent of their caseload violence, and the development and the National Resource Center for from the 60-month limit on receiving implementation of statewide standards Domestic Violence (NRC) and three welfare benefits for ‘‘reason of hardship for batterers intervention programs). Special Issue Resource Centers (SIRCs). or if the family includes an individual Statewide Planning includes needs The SIRCs are the Battered Women’s who has been battered or subjected to assessment and planning activities Justice Project; the Resource Center on extreme cruelty’’ (Section designed to document gaps in current Child Custody and Protection, and the 408(a)(7)(C)(i)); and (2) the Family response and prevention efforts and to Health Resource Center on Domestic Violence Amendment, (also known as guide future activities. Violence. The purpose of the NRC and the Wellstone/Murray Family Violence Public Awareness/Community the SIRCs is to provide resource provision), where States have the option Education includes work designed to information, training, and technical to include a certification about victims inform and mobilize the general public assistance to Federal, State, and Native of domestic violence in their State plans around domestic violence issues (e.g., American agencies, local domestic which allows States to waive certain education programs in elementary, violence prevention programs, and other requirements for certain domestic middle and high schools and expanded professionals who provide services to violence victims (Section 402(a)(7)). outreach to underserved populations). victims of domestic violence. To carry out a new provision of the (d) The Role and Activities of State Administration includes activities directed at supporting organizational Crime Bill, the President announced in Domestic Violence Coalitions in February, 1996, the Department’s Coordination functioning, such as fiscal and programmatic record keeping and funding of a national domestic violence State Domestic Violence Coalitions reporting, state-wide management of hotline to ensure that every woman has have an important role in ensuring that programs, and fundraising. access to information and emergency these and other Federal and State Direct Services are those provided assistance wherever and whenever she initiatives are informed by and directly to victims of domestic violence needs it. The national domestic violence coordinated with related intervention or to their families, friends, or hotline is a 24-hour, toll-free service and prevention efforts. It remains supporters by a State coalition (e.g., which provides crisis assistance, important that State coalition efforts to State-wide hotline, information and counseling, and local shelter referrals to improve the judicial, social services, referral, legal advocacy services, etc.). women across the country. Hotline and health systems response to The above categories are included as counselors also are available for non- domestic violence continue to expand an overview of the role that State English speaking persons and for people and are coordinated with State agency coalitions may play in domestic who are hearing impaired. The hotline initiatives in these areas. number is 1–800–799–SAFE; the TDD In 1966, the National Center for Injury violence intervention and prevention and the types of collaborative activities number for the hearing impaired is 1– Prevention and Control of the Centers 800–787–3224 for Disease Control and Prevention the Family Violence Prevention and (CDC) initiated a project to compile an Service Act are meant to support. B. Funds Available inventory of funding sources for Part II. Programmatic and Funding Congress appropriated $62,000,000 domestic violence and sexual assault Information for FY 1997 to carry out the Family coalitions and community-based Violence Prevention and Services programs. This included a survey of A. Background program. In addition, through the coalitions and programs to identify the Title III of the Child Abuse Violence Crime Reduction Trust Fund, types of funding received and the Amendments of 1984 (Public Law 98– $10,800,000 was authorized for the activities this funding supported. The 457, 42 U.S.C. 10401 et seq.) is entitled Grants to Battered Women’s Shelter survey used the following categories to the ‘‘Family Violence Prevention and program and $1,200,000 for the National capture the range of activities of many Services Act’’ (the Act). The Act was Domestic Violence Hotline. The grant State domestic violence coalitions: first implemented in FY 1986, award for the National Domestic Services Advocacy includes work to reauthorized and amended in 1992 by Violence Hotline is made in a separate support the growth and development of Public Law 102–295, in 1994 by Public announcement. community-based domestic violence Law 103–322, the Violent Crime Control Of the total appropriated in section programs, including the provision of and Law Enforcement Act, and in 1996 310(a) for fiscal year 1997, we will training and technical assistance to by Pub. L. 104–235, the Child Abuse allocate 70 percent of the total those providing direct services (e.g., Prevention and Treatment Act (CAPTA) ($72,800,000) to the designated State providing training and technical of 1996. agencies administering family violence assistance to hotline /shelter workers The purpose of this legislation is to prevention and services programs; 10 and legal advocates, developing assist States and Native American percent to the Tribes and Tribal program standards for domestic Tribes and Tribal organizations in organizations for the establishment and violence programs). supporting the establishment, operation of shelters, safe houses, and 27048 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices the provision of related services; and 10 FY 97—not to exceed 50% of the total In addition to the consideration of the percent to the State Domestic Violence amount appropriated for such programs applicant tribe being over or under a Coalitions to continue their work within in FY 95; 3,000 member residential census we the domestic violence community by FY 98—not to exceed 25% of the total now consider the ratio of the tribe’s proving technical assistance and amount appropriated for such programs population to the total population of all training, and advocacy services among in FY 95. the tribes that have applied for these other activities with local domestic funds. D. Native American Tribal Allocations violence programs and to encourage Native American Tribes which meet appropriate responses to domestic Of the $72,800,000 appropriated for the application requirements and whose violence within the States. FY 1997, $7,280,000 is authorized for reservation and surrounding Tribal We also will make 5 percent of the grants to Native American Tribes. Trust Lands population is: $72,800,000 available to continue the Native American Tribes and Tribal • Less than 1,500 will receive a support for the National Resource organizations are eligible for funding minimum base amount of $1,500; Center and the three Special Issue under this program if they meet the • Greater than 1,500 but less than Resource Centers. The remaining 5 definition of such entities as found in 3,001 will receive a minimum base percent of the FY 1997 family violence subsections (b) and (c), respectively, of amount of $3,000; prevention and services funding will be section 4 of the Indian Self- • Between 3,001 and 4,000 will used to support training and technical Determination and Education receive a minimum base amount of assistance, collaborative projects with Assistance Act and are able to $4,000; and advocacy organizations and service demonstrate their capacity to carry out • Between 4,001 and 5,000 will providers, data collection efforts, public a family violence prevention and receive a minimum base amount of education activities, research and other services program. $5,000. demonstration activities. A list of currently eligible Native The minimum base amounts are in American Tribes is found at Appendix relation to the Tribe’s population and C. State Allocation B of this Announcement. Any Native the progression of an additional $1,000 The Secretary is required to make American Tribe that believes it meets per 1,000 persons in the population available not less than 70 percent of the eligibility criteria and should be range continues until the Tribe’s amounts appropriated under Section included in the list of eligible tribes population is 50,000. 310(a) for grants to States and not less should provide supportive Tribes with a population of 50,000 to than 10% of amounts appropriated documentation in its application and a 100,000 will receive a minimum of under Section 310(a) for grants to Native request for inclusion. (See Native $50,000, and Tribes with a population American Tribes and Tribal American Tribal Application of 100,001 to 150,000 will receive a organizations. Requirements in Part V.) minimum of $100,000. Family Violence grants to the States, In computing Native American Tribal Once the base amounts have been the District of Columbia, and the allocations, we will use the latest distributed to the Tribes that have Commonwealth of Puerto Rico are based available population figures from the applied for family violence funding, the on population. Each grant shall be not Census Bureau. Where Census Bureau ratio of the Tribe’s population to the less than 1% of the amounts data are unavailable, we will use figures total population of all the applicant appropriated for grants under section from the BIA Indian Population and Tribes is then considered in allocating 303(a) or $400,000, whichever is the Labor Force Report. If not all eligible the remainder of the funds. With the lesser amount. The CAPTA Tribes apply, the available funds will be distribution of a proportional amount reauthorization raised the minimum divided proportionally among the plus a base amount to the Tribes we grant to States from $200,000 to Tribes which do apply and meet the have accounted for the variance in $400,000. State allocations are listed as requirements. actual population and scope of the Appendix A at the end of this Because section 304 of the Act family violence programs. Under the announcement and have been computed specifies a minimum base amount for previous allocation plan we did not based on the formula in section 304 of State allocations, we have set a base have a method by which to consider the the Act. amount for Native American Tribal variance in tribal census counts. As in For the purpose of computing allocations. Since FY 1986, we have previous years, Tribes are encouraged to allotments, the statute provides that found, in practice, that the apply as consortia for the family Guam, American Samoa, the Virgin establishment of a base amount has violence funding. Islands, the Northern Mariana Islands, facilitated our efforts to make a fair and Part III. General Grant Requirements and the Republic of Palau will each equitable distribution of limited grant Applicable to States and Native receive grants of not less than one- funds. American Tribes eighth of 1% of the amounts Due to the expanded interest in the appropriated. However, on October 1, prevention of family violence and in the A. Definitions 1994, Palau became independent and a provision of services to victims of States and Native American Tribes Compact of Free Association between family violence and their dependents, should use the following definitions in the United States and Palau came into we have received an increasing number carrying out their programs. The effect. This change in the political status of tribal applications over the past definitions are found in section 309 of of Palau has the following effect on several years. In order to ensure the the Act. Palau’s allocation: continuance of an equitable distribution (1) Family Violence: Any act or In FY 95, Palau was entitled to 100% of family violence prevention and threatened act of violence, including of its allocation. Beginning in FY 96, its services funding in response to the any forceful detention of an individual, share was to be reduced as follows: increased number of tribes that apply, which (a) results or threatens to result FY 96—not to exceed 75% of the total we have changed the funding formula in physical injury and (b) is committed amount appropriated for such programs for the allocation of family violence by a person against another individual in FY 95; funds. (including an elderly person) to whom Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27049 such person is or was related by blood expenditure through September 30 of due 90 days after the end of each or marriage or otherwise legally related the following fiscal year, i.e., FY 1997 Federal fiscal year, i.e., reports are due or with whom such person is or was funds may be used for expenditures on December 29 of each year. lawfully residing. from October 1, 1996 through E. Required Certifications (2) Shelter: The provision of September 30, 1998. temporary refuge and related assistance Reallotted funds, if any, are available All applications must submit or in compliance with applicable State law for expenditure until the end of the comply with the required certifications and regulation governing the provision, fiscal year following the fiscal year that found at Appendix C as follows: on a regular basis, which includes the funds became available for • Anti-Lobbying Certification and shelter, safe homes, meals, and related reallotment. FY 1997 grant funds which Disclosure Form must be signed and assistance to victims of family violence are made available to the States through submitted with the application: If and their dependents. reallotment, under section 304(d)(1), applicable, a standard Form LLL, which (3) Related assistance: The provision must be expended by the State no later discloses lobbying payments must be of direct assistance to victims of family than September 30, 1998. submitted. • violence and their dependents for the Certification Regarding Drug-Free C. Reporting Requirements: New State purpose of preventing further violence, Workplace Requirements and the Performance Report helping such victims to gain access to Certification Regarding Debarment: The civil and criminal courts and other The Crime Bill amended the Act to signature on the application by the chief community services, facilitating the add new reporting requirements for program official attests to the applicants efforts of such victims to make decisions States in section 303(a)(4). This section intent to comply with the Drug-Free concerning their lives in the interest of requires that States file a performance Workplace requirements and safety, and assisting such victims in report with the Department describing compliance with the Debarment healing from the effects of the violence. the activities carried out, and including Certification. The Drug-Free Workplace Related assistance includes: an assessment of the effectiveness of and Debarment certification do not have those activities in achieving the to be returned with the application. (a) Prevention services such as • outreach and prevention services for purposes of the grant. A section of this Certification Regarding victims and their children, employment performance report must be completed Environmental Tobacco Smoke: The training, parenting and other by each grantee or subgrantee that signature on the application by the chief educational services for victims and performed the direct services program official attests to the applicants their children, preventive health contemplated in the State’s application intent to comply with the requirements services within domestic violence certifying performance of such services. of the Pro-Children Act of 1994 (Act). programs (including nutrition, disease The Performance Report may include The applicant further agrees that it will prevention, exercise, and prevention of examples of success stories about the require the language of this certification substance abuse), domestic violence services which were provided and the be included in any sub-awards which prevention programs for school age positive impact on the lives of children contain provisions for children’s services and that all grantees shall children, family violence public and families and should include the certify accordingly. awareness campaigns, and violence following information: an explanation of prevention counseling services to the activities carried out, including and Part IV. Application Requirements for abusers; assessment of the major activities States (b) Counseling with respect to family supported by the family violence funds, violence, counseling or other supportive what specific priorities within the State, A. Eligibility: States services by peers individually or in Tribe, or Tribal organization were ‘‘States’’ as defined in section 309(6) groups, and referral to community social assessed, and what special emphases of the Act are eligible to apply for funds. services; were placed on these activities; e.g., The term ‘‘State’’ means each of the (c) Transportation, technical including under-served populations and several States, the District of Columbia, assistance with respect to obtaining a description of the specific services and the Commonwealth of Puerto Rico, financial assistance under Federal and facilities that your agency funded, Guam, American Samoa, the Virgin State programs, and referrals for contracted with, or otherwise used in Islands, the Commonwealth of the appropriate health-care services the implementation of your program Northern Mariana Islands, and the (including alcohol and drug abuse (e.g., shelters, safehouse, related remaining eligible entity previously a treatment), but does not include assistance, programs for batterers). part of the Trust Territory of the Pacific reimbursement for any health-care Performance reports are due on an Islands—the Republic of Palau. services; annual basis at the end of the calendar In the past, Guam, the Virgin Islands (d) Legal advocacy to provide victims year (December 29). and the Commonwealth of the Northern with information and assistance through The statute also requires the Mariana Islands have applied for funds the civil and criminal courts, and legal Department to suspend funding for an as a part of their consolidated grant assistance; or approved application if any applicant under the Social Services Block grant (e) Children’s counseling and support fails to submit an annual performance (the Republic of Palau has applied for services, and child care services for report or if the funds are expended for funds through the Community Services children who are victims of family purposes other than those set forth Block Grant). These jurisdictions need violence or the dependents of such under this announcement. not submit an application under this victims. Program Announcement if they choose D. Reporting Requirements; to have their allotment included as part B. Expenditure Periods Departmental Grants Management of a consolidated grant application. The family violence prevention funds Reports under the Act may be used for All State and Native American Tribal B. Approval/Disapproval of a State’s expenditures on and after October 1 of grantees are reminded that the annual Application each fiscal year for which they are Program Reports and annual Financial The Secretary will approve any granted, and will be available for Status Reports (Standard Form 269) are application that meets the requirements 27050 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices of the Act and this announcement and funds and determining whether a under any authority other than this Title will not disapprove any such grantee is in compliance with sections (section 303(e)). (This is a new application except after reasonable 303(a)(2)(A), 303(a)(3) and 311(a)(5). provision added in the 1996 CAPTA notice of the Secretary’s intention to (5) Provide a copy of the procedures reauthorization.) disapprove has been provided to the developed and implemented that assure (f) That grant funds made available applicant and after a 6-month period the confidentiality of records pertaining under this program by the State will not providing an opportunity for applicant to any individual provided family be used as direct payment to any victim to correct any deficiencies. violence prevention or treatment or dependent of a victim of family The notice of intention to disapprove services by any program assisted under violence (section 303(c)). will be provided to the applicant within the Act (section 303(a)(2)(E)). (g) That no income eligibility standard 45 days of the date of the application. (6) Include a description of how the will be imposed on individuals State plans to use the grant funds, a receiving assistance or services C. Content of the State Application description of the target population, and supported with funds appropriated to The State’s application must be the expected results from the use of the carry out the Act (section 303(d)). signed by the Chief Executive of the grant funds (section 303(a)(4)). (h) That the address or location of any State or the Chief Program Official (7) Provide a copy of the law or shelter-facility assisted under the Act designated as responsible for the procedures that the State has will not be made public, except with the administration of the Act. implemented for the eviction of an written authorization of the person or All applications must contain the abusive spouse from a shared household persons responsible for the operation of following information or documents: (section 303(a)(2)(F)). such shelter (section 303(a)(2)(E)). (1) The name of the State agency, the All applications must contain the (i) That all grants made by the State name of the Chief Program Official following assurances: under the Act will prohibit designated as responsible for the (a) That grant funds under the Act discrimination on the basis of age, administration of funds under this Act, will be distributed to local public handicap, sex, race, color, national and the name of a contact person if agencies and nonprofit private origin or religion (section 307). different from the Chief Program Official organizations (including religious and (j) That funds made available under (section 303(a)(2)(D)). charitable organizations and voluntary the FVPSA be used to supplement and (2) A plan describing in detail how associations) for programs and projects not supplant other Federal, State, and the needs of underserved populations within the State to prevent incidents of local public funds expended to provide will be met, including populations family violence and to provide services and activities that promote the underserved because of ethnic, racial, immediate shelter and related assistance purposes of the FVPSA. cultural, language diversity or for victims of family violence and their (k) That States will comply with the geographic isolation (section dependents in order to prevent future applicable Departmental recordkeeping 303(a)(2)(c)). violent incidents (section 303(a)(2)(A)). and reporting requirements and general (a) Identify the underserved (b) That not less than 70 percent of requirements for the administration of populations that are being targeted for the funds distributed shall be used for grants under 45 CFR Parts 74 and 92. outreach and services. immediate shelter and related assistance (b) In meeting the needs of the to the victims of family violence and Part V. Application Requirements for underserved population, describe the their dependents and not less than 25 Native American Tribes and Tribal domestic violence training that will be percent of the funds distributed shall be Organizations provided to the individuals who will do used to provide related assistance A. Eligibility: Native American Tribes the outreach and intervention to these (section 303(f)). and Tribal Organizations populations. Describe the specific (c) That not more than 5 percent of service environment, e.g., new shelters, the funds will be used for State As described above, Native American services for the battered elderly, women administrative costs (section Tribes and Tribal organizations are of color etc. 303(a)(2)(B)(i)). eligible for funding under this program (c) Describe the public information (d) That in distributing the funds, the if they meet the definition of such component of the State’s outreach States will give special emphasis to the entities as found in subsections (b) and program; describe the elements of your support of community-based projects of (c) of section 4 of the Indian Self- program that are used to explain demonstrated effectiveness carried out Determination and Education domestic violence, the most effective by non-profit private organizations, Assistance Act and are able to and safe ways to seek help, identify particularly those projects the primary demonstrate their capacity to carry out available resources, etc. purpose of which is to operate shelters a family violence prevention and (3) Provide a complete description of for victims of family violence and their services program. the process and procedures used to dependents and those which provide A list of currently eligible Native involve State domestic violence counseling, advocacy, and self-help American Tribes and Tribal coalitions and other knowledgeable services to victims and their children organizations is found at Appendix B of individuals and interested organization (section 303(a)(2)(B)(ii)). this Announcement. Any Native to assure an equitable distribution of (e) That grants funded by the States American Tribe or Tribal organization grants and grant funds within the State will meet the matching requirements in that believes it meets the eligibility and between rural and urban areas in section 303(e), i.e., not less than 20 criteria and should be included in the the State (sections 303(a)(2)(C) and percent of the total funds provided for list of eligible tribes should provide 311(a)(5)). a project under this title with respect to supportive documentation and a request (4) Provide a complete description of an existing program, and with respect to for inclusion in its application. (See the process and procedures an entity intending to operate a new Application Content Requirements implemented that allow for the program under this title, not less than below.) participation of the State domestic 35 percent. The local share will be cash As in previous years, Native violence coalition in planning and or in kind; and the local share will not American Tribes may apply singularly monitoring the distribution of grant include any Federal funds provided or as a consortium. In addition, a non- Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27051 profit private organization, approved by (a) The current operation of a shelter, ‘‘Intergovernmental Review of Federal a Native American Tribe for the safehouse, or family violence prevention Programs,’’ for State plan consolidation operation of a family violence shelter on program; and implication only—45 CFR 100.12. a reservation is eligible for funding. (b) The establishment of joint or The review and comment provisions of collaborative service agreements with a the Executive Order and Part 100 do not B. Approval/Disapproval of a Native local public agency or a private non- American Tribes Application apply. Federally-recognized Native profit agency for the operation of family American Tribes are exempt from all The Secretary will approve any violence prevention activities or provisions and requirements of E.O. application that meets the requirements services; or 12372. of the Act and this Announcement, and (c) The operation of social services will not disapprove an application programs as evidenced by receipt of B. Paperwork Reduction Act unless the Native American Tribe or ‘‘638’’ contracts with the Bureau of Tribal organization has been given Indian Affairs (BIA); Title II Indian In accordance with the Paperwork reasonable notice of the Department’s Child Welfare grants from the BIA; Reduction Act of 1980 (Pub. L. 96–511), intention to disapprove and an Child Welfare Services grants under the application requirements contained opportunity to correct any deficiencies Title IV–B of the Social Security Act; or in this notice have been approved by the (section 303(B)(2)). Family Preservation and Family Office of Management and Budget under Support grants under title IV–B of the control number 0970–0062. C. Native American Tribe/Tribal Social Security Act. Organization Application Content (5) A description of the services to be C. Certifications Requirements provided, how the Native American Applications must comply with the The application from the Native Tribe or Tribal organization plans to use required certifications found at American Tribe, Tribal organization, or the grant funds to provide the direct Appendix C as follows: nonprofit private organization approved services, to whom the services will be by an eligible Native American Tribe, provided, and the expected results of Anti-Lobbying Certification and must be signed by the Chief Executive the services. Disclosure Form. Pursuant to 45 CFR Officer of the Native American Tribe or (6) Documentation of the procedures Part 93, the certification must be signed Tribal organization. that assure the confidentiality of records and submitted with the application. If All applications must contain the pertaining to any individual provided applicable, a standard form LLL, which following information/documents: family violence prevention or treatment discloses lobbying payments must be (1) The name of the organization or services by any program assisted under submitted. agency and the Chief Program Official the Act (section 303(a)(2)(E)). Certification Regarding Drug-Free designated as responsible for (7) The EIN number of the Native Workplace Requirements and the administering funds under the Act, and American tribe, Tribal organization, or the name, telephone number, and fax non-profit organization submitting the Certification Regarding Debarment: The number, if available, of a contact person application. signature on the application by the chief in the designated organization or Each application must contain the program official attests to the applicants agency. following assurances: intent to comply with the Drug-Free (2) A copy of a current resolution (a) That not less than 70 percent of the Workplace requirements and stating that the designated organization funds shall be used for immediate compliance with the Debarment or agency has the authority to submit an shelter and related assistance for victims Certification. The Drug-Free Workplace application on behalf of the Native of family violence and their dependents and Debarment certifications do not American individuals in the Tribe(s) and not less than 25% of the funds have to be returned with the and to administer programs and distributed shall be used to provide application. related assistance (section 303(f)). activities funded under this program Certification Regarding (section 303(b)(2)). (b) That grant funds made available under the Act will not be used as direct Environmental Tobacco Smoke: The (3) A description of the procedures signature on the application by the chief designed to involve knowledgeable payment to any victim or dependent of program official attests to the applicants individuals and interested organizations a victim of family violence (section intent to comply with the requirements in providing services under the Act 303(c)). of the Pro-Children Act of 1994. The (section 303(b)(2)). For example, (c) That the address or location of any knowledgeable individuals and shelter or facility assisted under the Act applicant further agrees that it will interested organizations may include: will not be made public, except with the require the language of this certification Tribal officials or social services staff written authorization of the person or be included in any sub-awards which involved in child abuse or family persons responsible for the operations of contain provisions for children’s violence prevention, Tribal law such shelter (section 303(a)(2)(E)). services and that all grantees shall enforcement officials, representatives of (d) That law or procedure has been certify accordingly. implemented for the eviction of an State coalitions against domestic (Catalog of Federal Domestic Assistance abusing spouse from a shared household violence, and operators of family number 93.671, Family Violence Prevention (section 303(a)(2)(F)). violence shelters and service programs. and Services) (4) A description of the Tribe’s Part VI. Other Information Dated: May 8, 1997. operation of and/or capacity to carry out a family violence prevention and A. Notification Under Executive Order Donald Sykes, services program. This might be 12372 Director, Office of Community Services. demonstrated in ways such as the For States, this program is covered BILLING CODE 4184±01±P following: under Executive Order 12372, 27052 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

BILLING CODE 4184±01±C Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27053

APPENDIX B APPENDIX BÐContinued APPENDIX BÐContinued

State Tribe name State Tribe name State Tribe name

AK ... Chevak Native Village AK ... Douglas Indian Association AK ... Qagan Tayagungin Tribe AK ... Lime Village AK ... Native Village of Eagle AK ... Nondalton Village AK ... Village of Aniak AK ... Noorvik Native Community AK ... Nome Eskimo Community (IRA) AK ... Anvic Village AK ... Village of Hotlik AK ... Native Village of NoatAK (IRA) AK ... Village of Artic Village AK ... Organized Village of Kwethluk (IRA) AK ... Ninilchik Village Traditional AK ... Native Village of Atka AK ... Egegik Village AK ... Native Village of Nikolski (IRA) AK ... Levelock Village AK ... Eklutna Native Village AK ... Nikolai Village AK ... Village of Atmautluak AK ... Native Village of Ekuk AK ... Native Village of Nightmute AK ... Atqasuk Village AK ... Ekwok Village AK ... Yakutat Tlingit Tribe AK ... New Stuyahok Village AK ... Native Village of Goodnews AK ... Native Village of Tazlina AK ... Village of Chefomak AK ... Organized Village of Grayling AK ... St. George Island AK ... Village of Anaktuvuk Pass AK ... Gulkana Village AK ... Native Village of St. Michael AK ... Chickaloon Native Village AK ... Native Village of Kongiganak AK ... Aleut Community of St. Paul AK ... Native Village of Chignik AK ... Koliganet Village AK ... Stebbins Community AK ... Native Village of Larsen Bay AK ... Native Village of Kotzebue AK ... Native Village of Stevens (IRA) AK ... Native Village of Chignik AK ... Seldovia Village Tribe AK ... Village of Stoney River AK ... Chignik Lake Village AK ... Rampart Village AK ... Takotna Village AK ... Chilkat Indian Village AK ... Village of Red Devil AK ... Native Village of Tanacross AK ... Chilkoot Indian Association AK ... Native Village of Ruby AK ... Umkumiut Native Village AK ... Native Village of Kwinhagak AK ... Iqurmuit Tribe (Russian AK ... Native Village of Tatitlek (IRA) AK ... Native Village of Chenega (IRA) AK ... Village of Salamatof AK ... Native Village of Hamilton AK ... Native Village of Mekoryuk AK ... Qagun Tayagungin Tribe of AK ... Telida Village AK ... Nenana Native Association AK ... Native Village of Savoonga (IRA) AK ... Native Village of Teller AK ... Native Village of Nelson Lagoon AK ... Organized Village of Saxman AK ... Native Village of Tetlin (IRA) AK ... Native Village of Napaskiak AK ... Native Village of Solomon AK ... Traditional Village of Togiak AK ... Native Village of Napaimute AK ... Native Village of Selawik (IRA) AK ... Native Village of Toksook Bay AK ... Native Village of Napakiak (IRA) AK ... Native Village of Port Heiden AK ... Tuluksak Native Community AK ... Native Village of Nanwalek AK ... Shageluk Native Village (IRA) AK ... Native Village of Tuntutuliak AK ... Naknek Native Village AK ... Native Village of Shaktoolik AK ... Native village of Tununak (IRA) AK ... Asa' Carsarmuit Tribe of Mt. AK ... Native Village of Sheldon`s AK ... Twin Hills Village AK ... Angoon Community AK ... Native Village of Shishmaref AK ... Native Village of Tanana (IRA) AK ... Mentasta Lake Village AK ... Shoonaq' Tribe of Kodiak AL ... Poarch Band of Creek Indians AK ... Yupiit of Andreafski AK ... Native Village of Shungnak AZ ... AK Chin Indian Community AK ... McGrath Native Village AK ... Sitka Tribe of Alaska (IRA) AZ ... San Juan Southern Paiute Council AK ... Native Village of Mary's Igloo AK ... Skaguay Traditional Council AZ ... Yavapai-Prescott Board of Directors AK ... Native Village of Marshall (aka) AK ... Newhalen Village AZ ... Yavapai-Apache Community Council AK ... Manokotak Village AK ... Native Village of Scammon Bay AZ ... White Mountain Apache Tribal Council AK ... Manley Hot Springs Village AK ... Petersburg Indian Association AZ ... Tohono O' odham Council AK ... Village of Lower Kalskag AK ... Northway Village AZ ... Quechan Tribal Council AK ... Native Village of Ambler AK ... Native Village of Nuiqsut AZ ... San Carlos Tribal Council AK ... Metlakatla Indian Community AK ... Nulato Village AZ ... Salt River Pima-Maricopa Indian AK ... Koyukuk Native Village AK ... Native Village of Nunapitchuk AZ ... Pascua Yaqui Tribal Council AK ... Native Village of Mento (IRA) AK ... Native Village of Ohogamiut AZ ... Colorado river Tribal Council AK ... Native Village of Kipnuk AK ... Village of Old Harbor AZ ... Tonto Apache Tribal Council AK ... Native Village of Kwigillingok (IRA) AK ... Orutsararmuit Native Council, AZ ... Cocopah Tribal Office AK ... Healy Lake Village AK ... Oscarville Traditional Council AZ ... Kaibab Paiute tribal Council AK ... Knit Tribe AK ... Native Village of Ouzinkie AZ ... Mohave-Apache Community AK ... Holy Cross Village AK ... Portage Creek Village AZ ... Hualapai Tribal Council AK ... Hoonah Indian Association AK ... Native Village of Perryville (IRA) AZ ... Havasupai Tribal Council AK ... Native Village of Hooper Bay AK ... Native Village of Port Lions AZ ... Hopi Tribal Council AK ... Hughes Village AK ... Native Village of Piamiut AZ ... Gila River Indian Community AK ... Native Village of Kluti-Kaah AK ... Native Village of Pilot Point CA ... Paskenta Band of Nomlaki Indians AK ... Native Village of Kobuk AK ... Pilot Station Traditional Council CA ... Pechanga Band of Mission AK ... Native Village of Kivalina (IRA) AK ... Native Village of Pitka`s Point CA ... Picayune Rancheria AK ... Kokhanok Village AK ... Platinum Traditional Village CA ... Pinoleville Indian Reservation AK ... Huslia Village AK ... Native Village of Point Hope CA ... Pit River Tribal Council AK ... King Island Native Community (IRA) AK ... Native Village of Point Lay CA ... Potter valley Rancheria AK ... Agdaagux Tribe of King Cove AK ... Port Graham Village CA ... Redding Rancheria AK ... Native Village of Kiana AK ... South Naknek Village CA ... Ramona Band oc Cahuilllla AK ... Native Village of Karluk (IRA) AK ... Pedro Bay Village CA ... Coast Indian Community of the AK ... Organized Village of Kasaan AK ... Native Village of Paimiut CA ... Redwood Valley Rancheria AK ... Native Village of Kasiglik AK ... Village of Sleetmute CA ... Pauma Band of Mission Indians AK ... Kenaitze Indian Tribe (IRA) AK ... Native Village of Unalakleet CA ... Rincon Band of Mission Indians AK ... Ketchikan Indian Corporation AK ... Native Village of Unga CA ... Quartz Valley Reservation AK ... Klawock Cooperative AK ... Qawalangin Tribe of Unalaska, CA ... Pala Band of Mission AK ... Native Village of Eek AK ... Village of Wainwright CA ... North Fork Rancheria AK ... Newtok Village AK ... Native Village of Wales (IRA) CA ... Morongo Band AK ... Chinik Eskimo Community (aka) AK ... Native Village of White CA ... Mooretown Rancheria AK ... Native Village of Koyuk (IRA) AK ... Wrangell Cooperative CA ... Middletown Rancheria AK ... Native Village of Dilligham AK ... Ugashik Village CA ... Mesa Grande Band of Mission AK ... Native Village of Diomede AK ... Village of Ohogamiut CA ... Manzanita General Council AK ... Village of Dot Lake AK ... Native Village of Tyonek (IRA) CA ... Robinson Rancheria 27054 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

APPENDIX BÐContinued APPENDIX BÐContinued APPENDIX BÐContinued

State Tribe name State Tribe name State Tribe name

CA ... Lyton Rancheria CA ... Coyote Valley Reservation NV ... Stewart Community Council CA ... Scotts Valley Band of Pomo CA ... Cortina Rancheria NV ... Yomba Tribal Council CA ... Los Coyotes Band of Mission CA ... Colusa Rancheria NV ... Las Vegas Tribal Council CA ... Lone Pine reservation CA ... Cold Springs Rancheria NV ... Tribal Council of the Te-Moak CA ... Laytonville Rancheria CA ... Cloverdale Rancheria NV ... Yerington Paiute Tribal Council CA ... La Posta Band CA ... Chico Rancheria NV ... Fort McDermitt Tribal Council CA ... Manchester/Point Arena CA ... Chicken Ranch Rancheria NV ... Fallon Business Council CA ... Stewarts Point Rancheria CA ... Fort Bidwell Reservation NV ... Ely Colony Council CA ... Yurok Tribe CO .. Southern Ute Tribe NV ... Elko Band Council CA ... Viejas Tribal Council CT ... Mohegan Tribe of Indians of NV ... Duckwater Shoshone Tribal CA ... Upper Lake Rancheria FL .... Seminole Tribe of Florida NY ... Oneida Indian Nation of New CA ... United Auburn Indian IA .... Sac & Fox Tribal Council NY ... Onondaga Nation CA ... Twenty Nine Palms Band of ID .... Northwestern Band of Shoshoni NY ... Seneca Nation of Indians CA ... Tuolumne Me-wuk Rancheria ID .... Nez Perce Tribal Executive OK ... Kaw Executive Committee CA ... Tule River Reservation ID .... Kootenai Tribal Council OK ... Miami Tribe of Oklahoma CA ... Trinidad Rancheria ID .... Fort Hall Business Council OK ... Kickapoo of Oklahoma Business CA ... Torres-Martinez Desert Cahuilla ID .... Coeur D' Alene Tribal Council OK ... Kialegee Tribal Town CA ... Timbisha Shoshone Tribe KS ... Prairie Band Potawatomi of OK ... Cherokee Nation of Oklahoma CA ... Table Mountain Rancheria KS ... Kickapoo Tribe of Kansas OK ... Alabama-Quassarte Tribal CA ... Table Bluff Rancheria ME .. Passamaquoddy-Indian OK ... Ponca Business Committee CA ... Santa Ynez Band of Mission ME .. Passamaquoddy-Pleasant Point OK ... Kiowa Business Committee CA ... Susanville Rancheria ME .. Penobscot Nation OK ... Otoe-Missouria Tribal Council CA ... Bear River Band of Rohnerville MI .... Little Traversa Bay Band of OK ... Choctaw Nation of Oklahoma CA ... Soboba Band of Mission Indians MI .... Saginaw Chippewa Tribal OK ... Iowa Tribe of Oklahoma CA ... Smith River Rancheria MI .... Bay Mills Executive Council OK ... Modok Tribe of Oklahoma CA ... Shingle Springs Rancheria MI .... Lac Vieux Desert Band of Lake OK ... Osage Nation of Oklahoma CA ... Sherwood Valley Rancheria MI .... Grand Traverse Tribal Council OK ... Ottawa Tribe of Oklahoma CA ... Fort Independence Reservation MI .... Hannahville Indian Community OK ... Wyandotte Tribe of Oklahoma CA ... Santa Ysabel Band of Mission MI .... Keweenaw Bay Tribal Council OK ... Pawnee Business Council CA ... La Jolla Band MI .... Sault Ste. Marie Chippewa OK ... Peoria Indian Tribe of Oklahoma CA ... Santa Rosa Reservation MI .... Pokagon Band of Potawatomi OK ... Quapaw Tribal Business CA ... Santa Rosa Rancheria MI .... Little River Band of Ottawa OK ... United Keetoowah Band of CA ... San Pasqual Band MN .. Mille Lacs Reservation Business OK ... Chickasaw Nation CA ... San Manuel Band of Mission MN .. White Earth Reservation OK ... Muscogee Creek Nation of CA ... Rumsey Rancheria MN .. Prairie Island Community OK ... Thlopthlocco Tribal Town CA ... Round Valley Reservation MN .. Leech Lake Reservation OK ... Seminole Nation of Oklahoma CA ... Sycuan Business Committee MN .. Shakopee Sioux Business OK ... Seneca-Cayuga Tribe of CA ... Big Lagoon Rancheria MN .. Upper Sioux Board of Trustees OR .. Confederated Tribes of the Grande CA ... Cahuilla Band of Mission MN .. Red Lake Band of Chippewa OR .. Klamath General Council CA ... Cabazon Indians of California MN .. Fond du Lac Reservation OR .. Cow Creek Band of Umpqua CA ... Buena Vista Rancheria MN .. Bois Forte Reservation Tribal OR .. Confederated Tribes of the CA ... Bridgeport Indian Colony MN .. Minnesota Chippewa Tribal OR .. Confederated Tribes of Coos CA ... Blue Lake Rancheria MN .. Lower Sioux Indian Community OR .. Burns-Paiute General Council CA ... Karuk Tribe of California MN .. Grand Portage Reservation OR .. Coquille Indian Tribes CA ... Big Valley Rancheria MO .. Eastern Shawnee Tribe of RI .... Narrangansett Indian Tribe CA ... Grindstone Rancheria MT ... Confederated Salish & Kootenai SD ... Sisseton-Wahpeton Sioux Tribal CA ... Campo Band of Mission Indians ND ... Three Affiliated Tribes Business SD ... Yankton Sioux Tribal Business CA ... Ione Band of Miwok ND ... Standing Rock Sioux Tribe TX ... Kickapoo Traditional Tribe CA ... Bishop Reservation ND ... Turtle Mountain Tribal Council UT ... Goshute Business Council CA ... Berry Creek Rancheria NE ... Winnebago Tribal Council UT ... Unitah & Ouray Tribal Business CA ... Benton Paiute Reservation NM .. Pueblo of Santa Ana UT ... Skull Valley General Council CA ... Barona General Business NM .. Pueblo of Tesuque UT ... Paiute Indian Tribe of Utah CA ... Alturas Rancheria NM .. Pueblo of Taos WA .. Upper Skagit Tribal Council CA ... Agua Caliente Tribal Council NM .. Pueblo of Santa Clara WA .. Lummi Business Council CA ... Winemucca Indian Colony NM .. Pueblo of Sandia WA .. Yakama Tribal Council CA ... Woodfords Community Council NM .. Pueblo of San Juan WA .. Kalispel Business Commitee CA ... Fort Mohave Tribal Council NM .. Pueblo of San Felipe WA .. Muckleshioot Tribal Council CA ... Big Pine Reservation NM .. Pueblo of San Ildefonso WA .. Sauk-Suiattle Tribal Council CA ... Elem Indian Colony of Pomo NM .. Pueblo of Santo Domingo WA .. Chehalis Business Council CA ... Jackson Rancheria NV ... South Fork Band Council WA .. Jamestown S' Klallam Tribal CA ... Big Sandy Rancheria NV ... Moapa Band of Paiute WA .. Colville Business Council CA ... Jamul Band of Mission Indians NV ... Lovelock Tribal Council WA .. Lower Elwha Community CA ... Cedarville Rancheria NV ... Pyramid Lake Paiute Tribal WA .. Makah Tribal Council CA ... Hoopa Valley Tribal Council NV ... Reno-Sparks Tribal Council WA .. Nisqually Indian Community CA ... Guidiville Rancheria NV ... Shoshone Paiute Business WA .. Nooksac Indian Tribal Council CA ... Greenville Rancheria NV ... Summit Lake Paiute Council WA .. Port Gamble S' Klallam Tribe CA ... Chemehuevi Tribal Council NV ... Battle Mountain Band Council WA .. Puyallup Tribal Council CA ... Inaja-Cosmit Band of Mission NV ... Wells Indian Colony Band WA .. Quileute Tribal Council CA ... Elk Valley Rancheria NV ... Walker River Paiute tribal Council WA .. Quinault Indian Nation CA ... Hopland Reservation NV ... Washoe Tribal Council WA .. Hoh Tribal Business Council CA ... Dry Creek Rancheria NV ... Carson Colony Community WI ... Forest County Potawatomi CA ... Cuyapaipe Band of Mission NV ... Dresslerville Community WI ... The Ho-Chunk Nation Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27055

APPENDIX BÐContinued Federal contract, grant, loan, or cooperative Statement for Loan Guarantees and Loan agreement. Insurance State Tribe name (2) If any funds other than Federal The undersigned states, to the best of his appropriated funds have been paid or will be or her knowledge and belief, that: paid to any person for influencing or WI ... Lac Courte Oreilles Governing If any funds have been paid or will be paid attempting to influence an officer or WI ... Lac du Flambeau Tribal Council to any person for influencing or attempting WI ... Bad River Tribal Council employee of any agency, a Member of to influence an officer or employee of any WI ... Menominee Indian Tribe of Congress, an officer or employee of Congress, WI ... Onida Tribal Council or an employee of a Member of Congress in agency, a Member of Congress, an officer or WI ... Red Cliff Tribal Council connection with this Federal contract, grant, employee of Congress, or any employee of a WI ... Sokagon Chippewa Tribal loan, or cooperative agreement, the Member of Congress in connection with this WI ... StockbridgeÐMunsee Tribal undersigned shall complete and submit commitment providing for the United States WI ... St. Croix Council Standard Form—LLL, ‘‘Disclosure Form to to insure or guarantee a loan, the Report Lobbying,’’ in accordance with its undersigned shall complete and submit Appendix C—Certification Regarding instructions. Standard Form —LLL, ‘‘Disclosure Form to Lobbying (3) The undersigned shall require that the Report Lobbying,’’ in accordance with its language of this certification be included in instructions. Submission of this statement is Certification for Contracts, Grants, Loans, and the award documents for all subawards at all Cooperative Agreements a prerequisite for making or entering into this tiers (including subcontracts, subgrants, and transaction imposed by section 1352, title 31, The undersigned certifies, to the best of his contracts under grants, loans, and U.S. Code. Any person who fails to file the or her knowledge and belief, that: cooperative agreements) and that all required statement shall be subject to a civil (1) No Federal appropriated funds have subrecipients shall certify and disclose penalty of not less than $10,000 and not more been paid or will be paid, by or on behalf of accordingly. than $100,000 for each such failure. the undersigned, to any person for This certification is a material lllllllllllllllllllll influencing or attempting to influence an representation of fact upon which reliance officer or employee of an agency, a Member was placed when this transaction was made Signature of Congress, an officer or employee of or entered into. Submission of this lllllllllllllllllllll Congress, or an employee of a Member of certification is a prerequisite for making or Title Congress in connection with the awarding of entering into this transaction imposed by lllllllllllllllllllll any Federal contract; the making of any section 1352, title 31, U.S. Code. Any person Organization Federal grant, the making of any Federal who fails to file the required certification lllllllllllllllllllll loan, the entering into of any cooperative shall be subject to a civil penalty of not less Date agreement, and the extension, continuation, than $10,000 and not more than $100,000 for renewal, amendment, or modification of any each such failure. BILLING CODE 4184±01±P 27056 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

BILLING CODE 4184±01±C Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27057

This certification is required by the imposition of sentence, or both, by any Federal agency has designated a central point regulations implementing the Drug-Free judicial body charged with the responsibility for the receipt of such notices. Notice shall Workplace Act of 1988: 45 CFR Part 76, to determine violations of the Federal or include the identification number(s) of each Subpart, F. Sections 76.630(c) and (d)(2) and State criminal drug statutes; affected grant; 76.645(a)(1) and (b) provide that a Federal Criminal drug statute means a Federal or (f) Taking one of the following actions, agency may designate a central receipt point non-Federal criminal statute involving the within 30 calendar days of receiving notice for STATE-WIDE AND STATE AGENCY- manufacture, distribution, dispensing, use, or under paragraph (d)(2), with respect to any WIDE certifications, and for notification of possession of any controlled substance; employee who is so convicted— criminal drug convictions. For the Employee means the employee of a grantee (1) Taking appropriate personnel action Department of Health and Human Services, directly engaged in the performance of work against such an employee, up to and the central pint is: Division of Grants under a grant, including: (i) All direct charge including termination, consistent with the Management and Oversight, Office of employees; (ii) All indirect charge employees requirements of the Rehabilitation Act of Management and Acquisition, Department of unless their impact or involvement is 1973, as amended; or Health and Human Services, Room 517–D, insignificant to the performance of the grant; (2) Requiring such employee to participate 200 Independence Avenue, SW., and, (iii) Temporary personnel and satisfactorily in a drug abuse assistance or Washington, DC 20201. consultants who are directly engaged in the rehabilitation program approved for such Certification Regarding Drug-Free Workplace performance of work under the grant and purposes by a Federal, State, or local health, law enforcement, or other appropriate Requirements (Instructions for Certification) who are on the grantee’s payroll. This definition does not include workers not on agency; 1. By signing and/or submitting this the payroll of the grantee (e.g., volunteers, (g) Making a good faith effort to continue application or grant agreement, the grantee is even if used to meet a matching requirement; to maintain a drug-free workplace through providing the certification set out below. consultants or independent contractors not implementation of paragraphs (a), (b), (c), (d), 2. The certification set out below is a on the grantee’s payroll; or employees of (e) and (f). material representation of fact upon which subrecipients or subcontractors in covered (B) The grantee may insert in the space reliance is placed when the agency awards workplaces). provided below the site(s) for the the grant. If it is later determined that the performance of work done in connection Certification Regarding Drug-Free Workplace grantee knowingly rendered a false with the specific grant: Requirements certification, or otherwise violates the Place of Performance (Street address, city, requirements of the Drug-Free Workplace Alternate I. (Grantees Other Than county, state, zip code) Act, the agency, in addition to any other Individuals) lllllllllllllllllllll remedies available to the Federal lllllllllllllllllllll Government, may take action authorized The grantee certifies that it will or will under the Drug-Free Workplace Act. continue to provide a drug-free workplace by: Check b if there are workplaces on file that 3. For grantees other than individuals, (a) Publishing a statement notifying are not identified here. employees that the unlawful manufacture, Alternate I applies. Alternate II. (Grantees Who Are Individuals) 4. For grantees who are individuals, distribution, dispensing, possession, or use of (a) The grantee certifies that, as a condition Alternate II applies. a controlled substance is prohibited in the of the grant, he or she will not engage in the 5. Workplaces under grants, for grantees grantee’s workplace and specifying the unlawful manufacture, distribution, other than individuals, need not be identified actions that will be taken against employees dispensing, possession, or use of a controlled on the certification. If known, they may be for violation of such prohibition; substance in conducting any activity with the identified in the grant application. If the (b) Establishing an ongoing drug-free grant; grantee does not identify the workplaces at awareness program to inform employees (b) If convicted of a criminal drug offense the time of application, or upon award, if about— resulting from a violation occurring during there is no application, the grantee must keep (1) The dangers of drug abuse in the the conduct of any grant activity, he or she the identity of the workplace(s) on file in its workplace; will report the conviction, in writing, within office and make the information available for (2) The grantee’s policy of maintaining a 10 calendar days of the conviction, to every Federal inspection. Failure to identify all drug-free workplace; grant officer or other designee, unless the known workplaces constitutes a violation of (3) Any available drug counseling, Federal agency designates a central point for the grantee’s drug-free workplace rehabilitation, and employee assistance the receipt of such notices. When notice is requirements. programs; and made to such a central point, it shall include 6. Workplace identification must include (4) The penalties that may be imposed the identification number(s) of each affected the actual address of buildings (or parts of upon employees for drug abuse violations grant. buildings) or other sites where work under occurring in the workplace; the grant takes place. Categorical descriptions (c) Making it a requirement that each Certification Regarding Debarment, may be used (e.g., all vehicles of a mass employee to be engaged in the performance Suspension, and Other Responsibility transit authority or State highway department of the grant be given a copy of the statement Matters—Primary Covered Transactions while in operation, State employees in each required by paragraph (a); local unemployment office, performers in (d) Notifying the employee in the statement Instructions for Certification concert halls or radio studios). required by paragraph (a) that, as a condition 1. By singing and submitting this proposal, 7. If the workplace identified to the agency of employment under the grant, the employee the prospective primary participant is changes during the performance of the grant, will— providing the certification set out below. the grantee shall inform the agency of the (1) Abide by the terms of the statement; 2. The inability of a person to provide the change(s), if it previously identified the and certification required below will not workplaces in question (see paragraph five). (2) Notify the employer in writing of his or necessarily result in denial of participation in 8. Definitions of terms in the her conviction for a violation of a criminal this covered transaction. The prospective Nonprocurement Suspension and Debarment drug statute occurring in the workplace no participant shall submit an explanation of common rule and Drug-Free Workplace later than five calendar days after such why it cannot provide the certification set common rule apply to this certification. conviction; out below. The certification or explanation Grantees’ attention is called, in particular, to (e) Notifying the agency in writing, within will be considered in connection with the the following definitions from these rules: ten calendar days after receiving notice under department or agency’s determination Controlled substance means a controlled paragraph (d)(2) from an employee or whether to enter into this transaction. substance in Schedules I through V of the otherwise receiving actual notice of such However, failure or the prospective primary Controlled Substances Act (21 U.S.C. 812) conviction. Employers of convicted participant to furnish a certification or an and as further defined by regulation (21 CFR employees must provide notice, including explanation shall disqualify such person 1308.11 through 1308.15); position title, to every grant officer or other from participation in this transaction. Conviction means a finding of guilt designee on whose grant activity the 3. The certification in this clause is a (including a plea of nolo contendere) or convicted employee was working, unless the material representation of fact upon which 27058 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices reliance was placed when the department or 10. Except for transactions authorized participant learns that its certification was agency determined to enter into this under paragraph 6 of these instructions, if a erroneous when submitted or had become transaction. If it is later determined that the participant in a covered transaction erroneous by reason of changed prospective primary participant knowingly knowingly enters into a lower tier covered circumstances. rendered an erroneous certification, in transaction with a person who is proposed 4. The terms covered transaction, debarred, addition to other remedies available to the for debarment under 48 CFR part 9, subpart suspended, ineligible, lower tier covered Federal Government, the department or 9.4, suspended debarred, ineligible, or transaction, participant, person, primary agency may terminate this transaction for voluntarily excluded from participation in covered transaction, principal, proposal, and cause or default. this transaction, in addition to other voluntarily excluded, as used in this clause, 4. The prospective primary participant remedies available to the Federal have the meaning set out in the Definitions shall provide immediate written notice to the Government, the department or agency may and Coverage sections of rules implementing department or agency to which this proposal terminate this transaction for cause or Executive Order 12549. You may contact the is submitted if any time the prospective default. person to which this proposal is submitted primary participant learns that its Certification Regarding Debarment, certification was erroneous when submitted for assistance in obtaining a copy of those Suspension, and Other Responsibility regulations. or has become erroneous by reason of Matters—Primary Covered Transactions changed circumstances. 5. The prospective lower tier participant 5. The terms covered transaction, debarred, (1) The prospective primary participant agrees by submitting this proposal that, [Page suspended, ineligible, lower tier covered certifies to the best of its knowledge and 33043] should the proposed covered transaction, participant, person, primary belief, that it and its principals: transaction be entered into, it shall not covered transaction, principal, proposal, and (a) Are not presently debarred, suspended, knowingly enter into any lower tier covered voluntarily excluded, as used in this clause, proposed for debarment, declared ineligible, transaction with a person who is proposed have the meanings set out in the Definitions or voluntarily excluded by any Federal for debarment under 48 CFR part 9, subpart and Coverage sections of the rules department or agency; 9.4, debarred, suspended, declared ineligible, implementing Executive Order 12549. You (b) Have not within a three-year period or voluntarily excluded from participation in may contact the department or agency to preceding this proposal been convicted of or this covered transaction, unless authorized which this proposal is being submitted for had a civil judgment rendered against them by the department or agency with which this assistance in obtaining a copy of those for commission of fraud or a criminal offense transaction originated. regulations. in connection with obtaining, attempting to 6. The prospective lower tier participant 6. The prospective primary participant obtain, or performing a public (Federal, State further agrees by submitting this proposal agrees by submitting this proposal that, or local) transaction or contract under a that it will include this clause titled public transaction; violation of Federal or should the proposed covered transaction be ‘‘Certification Regarding Debarment, State antitrust statutes or commission of entered into, it shall not knowingly enter into Suspension, Ineligibility and Voluntary embezzlement, theft, forgery, bribery, any lower tier covered transaction with a Exclusion-Lower Tier Covered Transaction,’’ falsification or destruction of records, making person who is proposed for debarment under without modification, in all lower tier 48 CFR part 9, subpart 9.4, debarred, false statements, or receiving stolen property; (c) Are not presently indicted for or covered transactions and in all solicitations suspended, declared ineligible, or voluntarily for lower tier covered transactions. excluded from participation in this covered otherwise criminally or civilly charged by a governmental entity (Federal, State or local) 7. A participant in a covered transaction transaction, unless authorized by the may rely upon a certification of a prospective department or agency entering into this with commission of any of the offenses enumerated in paragraph (1)(b) of this participant in a lower tier covered transaction. transaction that it is not proposed for 7. The prospective primary participant certification; and (d) Have not within a three-year period debarment under 48 CFR part 9, subpart 9.4, further agrees by submitting this proposal debarred, suspended, ineligible, or that it will include the clause titled preceding this application/proposal had one or more public transactions (Federal, State or voluntarily excluded from covered ‘‘Certification Regarding Debarment, transactions, unless it knows that the Suspension, Ineligibility and Voluntary local) terminated for cause or default. (2) Where the prospective primary certification is erroneous. A participant may Exclusion-Lower Tier Covered Transaction,’’ decide the method and frequency by which provided by the department or agency participant is unable to certify to any of the statements in this certification, such it determines the eligibility of its principals. entering into this covered transaction, Each participant may, but is not required to, without modification, in all lower tier prospective participant shall attach an check the List of Parties Excluded from covered transactions and in all solicitations explanation to this proposal. Federal Procurement and Nonprocurement for lower tier covered transactions. Certification Regarding Debarment, Programs. 8. A participant in a covered transaction Suspension, Ineligibility and Voluntary 8. Nothing contained in the foregoing shall may rely upon a certification of a prospective Exclusion—Lower Tier Covered be construed to require establishment of a participant in a lower tier covered Transactions transaction that is not proposed for system of records in order to render in good debarment under 48 CFR part 9, subpart 9.4, Instructions for Certification faith the certification required by this clause. debarred, suspended, ineligible, or 1. By signing and submitting this proposal, The knowledge and information of a voluntarily excluded from the covered the prospective lower tier participant is participant is not required to exceed that transaction, unless it knows that the providing the certification set out below. which is normally possessed by a prudent certification is erroneous. A participant may 2. The certification in this clause is a person in the ordinary course of business decide the method and frequency by which material representation of fact upon which dealings. it determines the eligibility of its principals. reliance was placed when this transaction 9. Except for transactions authorized under Each participant may, but is not required to, was entered into. If it is later determined that paragraph 5 of these instructions, if a check the List of Parties Excluded from the prospective lower tier participant participant in a covered transaction Federal Procurement and Nonprocurement knowingly rendered an erroneous knowingly enters into a lower tier covered Programs. certification, in addition to other remedies transaction with a person who is proposed 9. Nothing contained in the foregoing shall available to the Federal Government the for debarment under 48 CFR part 9, subpart be construed to require establishment of a department or agency with which this 9.4, suspended, debarred, ineligible, or system of records in order to render in good transaction originated may pursue available voluntarily excluded from participation in faith the certification required by this clause. remedies, including suspension and/or this transaction, in addition to other The knowledge and information of a debarment. remedies available to the Federal participant is not required to exceed that 3. The prospective lower tier participant Government, the department or agency with which is normally possessed by a prudent shall provide immediate written notice to the which this transaction originated may pursue person in the ordinary course of business person to which this proposal is submitted if available remedies, including suspension dealings. at any time the prospective lower tier and/or debarment. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27059

Certification Regarding Debarment, DEPARTMENT OF HEALTH AND U.S.C. 360k(a)) provides that no State or Suspension, Ineligibility and Voluntary HUMAN SERVICES local government may establish, or Exclusion—Lower Tier Covered Transactions continue in effect, any requirement with (1) The prospective lower tier participant Food and Drug Administration respect to a medical device that is certifies, by submission of this proposal, that [Docket No. 97N±0151] different from, or in addition to, any neither it nor its principals is presently Federal requirement applicable to the debarred, suspended, proposed for Agency Information Collection device under the act. Under section debarment, declared ineligible, or voluntarily Activities; Submission for OMB 521(b) of the act, following receipt of a excluded from participation in this Review; Comment Request written application from the State or transaction by any Federal department or local government involved, FDA may agency. AGENCY: Food and Drug Administration, exempt from preemption a requirement (2) Where the prospective lower tier HHS. that is more stringent than the Federal participant is unable to certify to any of the ACTION: Notice. statements in this certification, such requirement, or that is necessitated by prospective participant shall attach an SUMMARY: The Food and Drug compelling local conditions and explanation to this proposal. Administration (FDA) is announcing compliance with the requirement would that the proposed collection of not cause the device to be in violation Certification Regarding Environmental information listed below has been of any portion of any requirement under Tobacco Smoke submitted to the Office of Management the act. Exemptions are granted by Public Law 103–227, Part C— and Budget (OMB) for review and regulation issued after notice and Environmental Tobacco Smoke, also known clearance under the Paperwork opportunity for an oral hearing. as the Pro-Children Act of 1994 (Act), Reduction Act of 1995 (the PRA). The regulations in 21 CFR 808.20 requires that smoking not be permitted in any DATES: Submit written comments on the portion of any indoor routinely owned or collection of information by June 16, require a State or local government that leased or contracted for by an entity and used 1997. is seeking an exemption from preemption to submit an application to routinely or regularly for provision of health, ADDRESSES: Submit written comments day care, education, or library services to on the collection of information to the FDA. The application must include a children under the age of 18, if the services Office of Information and Regulatory copy of the State or local requirement, are funded by Federal programs either Affairs, OMB, New Executive Office as well as information about its directly or through State or local Bldg., 725 17th St. NW., rm. 10235, interpretation and application, and a governments, by Federal grant, contract, loan, Washington, DC 20503, Attn: Desk statement as to why the applicant or loan guarantee. The law does not apply to Officer for FDA. believes that the requirement qualifies children’s services provided in private FOR FURTHER INFORMATION CONTACT: for exemption from preemption under residences, facilities funded solely by Judith V. Bigelow, Office of Information the act. FDA will use the information in Medicare or Medicaid funds, and portions of Resources Management (HFA–250), the application to determine whether facilities used for inpatient drug or alcohol Food and Drug Administration, 5600 the requirement meets the criteria for treatment. Failure to comply with the exemption in the act and whether provisions of the law may result in the Fishers Lane, rm. 16B–19, Rockville, imposition of a civil monetary penalty of up MD 20857, 301–827–1479. granting an exemption would be in the to $1000 per day and/or the imposition of an SUPPLEMENTARY INFORMATION: In interest of the public health. administrative compliance order on the compliance with section 3507 of the In addition, 21 CFR 808.25 provides responsible entity. PRA (44 U.S.C. 3507), FDA has that an interested person may request a By signing and submitting this application submitted the following proposed hearing on an application by submitting the applicant/grantee certifies that it will collection of information to OMB for a letter to FDA following the publication comply with the requirements of the Act. The review and clearance. by FDA of a proposed response to the applicant/grantee further agrees that it will Application for Exemption From application. require the language of this certification be Federal Preemption of State and Local included in any subawards which contain FDA estimates the burden of this Medical Device Requirements—21 CFR collection of information as follows: provisions for the children’s services and that Part 808—(OMB Control No. 0910– all subgrantees shall certify accordingly. 0129—Reinstatement) [FR Doc. 97–12939 Filed 5–15–97; 8:45 am] Section 521(a) of the Federal Food, BILLING CODE 4184±01±P Drug, and Cosmetic Act (the act) (21

ESTIMATED ANNUAL REPORTING BURDEN

Annual 21 CFR Section No. of Frequency per Total Annual Hours per Total Hours Respondents Response Responses Response

808.20 3 1 3 100 300 808.25 3 1 3 10 30 Total 6 2 6 110 330 There are no capital costs or operating and maintenance costs associated with this collection of information.

FDA based its estimates of the number received indicating that applications discussions with those who have of submissions expected on the number would be submitted in the next year. prepared submissions in the last 3 years. of submissions submitted in the last 3 FDA based its estimates of the time years and on the number of inquiries required to prepare submissions on 27060 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Dated: April 25, 1997. Dated: May 2, 1997. The Notice lists the following William K. Hubbard, Alan M. Rulis, information: (1) The title of the Associate Commissioner for Policy Director, Office of Premarket Approval, information collection proposal; (2) the Coordination. Center for Food Safety and Applied Nutrition. office of the agency to collect the [FR Doc. 97–12952 Filed 5–15–97; 8:45 am] [FR Doc. 97–12953 Filed 5–15–97; 8:45 am] information; (3) the OMB approval BILLING CODE 4160±01±F BILLING CODE 4160±01±F number, if applicable; (4) the description of the need for the information and its proposed use; (5) DEPARTMENT OF HEALTH AND DEPARTMENT OF HOUSING AND the agency form number, if applicable; HUMAN SERVICES URBAN DEVELOPMENT (6) what members of the public will be affected by the proposal; (7) how Food and Drug Administration [Docket No. FR±4200±N±62] frequently information submissions will [Docket No. 97F±0181] be required; (8) an estimate of the total Submission for OMB Review: number of hours needed to prepare the Exxon Chemical Co.; Filing of Food Comment Request information submission including Additive Petition AGENCY: Office of Administration, HUD. number of respondents, frequency of response, and hours of response; (9) AGENCY: Food and Drug Administration, ACTION: Notice. whether the proposal is new, an HHS. SUMMARY: The proposed information extension, reinstatement, or revision of ACTION: Notice. collection requirement described below an information collection requirement; has been submitted to the Office of and (10) the names and telephone SUMMARY: The Food and Drug numbers of an agency official familiar Administration (FDA) is announcing Management and Budget (OMB) for review, as required by the Paperwork with the proposal and of the OMB Desk that Exxon Chemical Co. has filed a Officer for the Department. petition proposing that the food additive Reduction Act. The Department is regulations be amended to change the soliciting public comments on the Authority: Section 3507 of the Paperwork subject proposal. Reduction Act of 1995, 44 U.S.C. 35, as melting point range specification for amended. polypropylene intended for use in DATES: Comments due date: June 16, Dated: May 7, 1997. contact with food. 1997. David S. Cristy, FOR FURTHER INFORMATION CONTACT: ADDRESSES: Interested persons are Acting Director, Information Resources Mark A. Hepp, Center for Food Safety invited to submit comments regarding this proposal. Comments must be Management Policy and Management and Applied Nutrition (HFS–215), Food Division. and Drug Administration, 200 C St. SW., received within thirty (30) days from the Washington, DC 20204, 202 418–3098. date of this Notice. Comments should Notice of Submission of Proposed refer to the proposal by name and/or Information Collection to OMB SUPPLEMENTARY INFORMATION: Under the Federal Food, Drug, and Cosmetic Act OMB approval number should be sent Title of Proposal: American Housing (sec. 409(b)(5) (21 U.S.C. 348(b)(5))), to: Joseph F. Lackey, Jr., OMB Desk Survey (AHS)—1997 National Sample. notice is given that a food additive Officer, Office of Management and Office: Policy Development and petition (FAP 7B4544) has been filed by Budget, Room 10235, New Executive Research. Exxon Chemical Co., P.O. Box 3272, Office Building, Washington, DC 20503. OMB Approval Number: 2528–0017. Houston, TX 77253–3272. The petition FOR FURTHER INFORMATION CONTACT: Kay Description of the Need for the proposes to amend the food additive F. Weaver, Reports Management Officer, Information and its Proposed Use: The regulations in § 177.1520 Olefin Department of Housing and Urban 1997 AHS-National is a longitudinal polymers (21 CFR 177.1520) to change Development, 451 7th Street, study that collects current information the melting point range for propylene Southwest, Washington, DC 20410, on the quality, availability, and cost of polymers intended for use in contact telephone (202) 708–0050. This is not a the housing inventory. It also provides with food from 160–180 °C to 150–180 toll-free number. Copies of the proposed information on the characteristics of °C. forms and other available documents occupants. Federal and local The agency has determined under 21 submitted to OMB may be obtained government agencies use AHS data to CFR 25.24(9) that this action is of a type from Ms. Weaver. evaluate housing issues. that does not individually or SUPPLEMENTARY INFORMATION: The Form Number: AHS–26(L), 27(L), and cumulatively have a significant effect on Department has submitted the proposal 28(L). the human environment. Therefore, for the collection of information, as Respondents: Individuals or neither an environmental assessment described below, to OMB for review, as households. nor an environmental impact statement required by the Paperwork Reduction Frequency of Submission: is required. Act (44 U.S.C. Chapter 35). Reporting Burden:

Number of × Frequency of × Hours per Burden respondents response response = hours

Survey ...... 56,000 1 .56 31,277

Total Estimated Burden Hours: Contact: Duane T. McGough, HUD, Dated: May 7, 1997. 31,277. (202) 708–1060; Joseph F. Lackey, Jr., [FR Doc. 97–12840 Filed 5–15–97; 8:45 am] Status: Revision. OMB, (202) 395–7316. BILLING CODE 4210±01±M Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27061

DEPARTMENT OF HOUSING AND telephone (202) 708–0050. This is not a Authority: Section 3507 of the Paperwork URBAN DEVELOPMENT toll-free number. Copies of the proposed Reduction Act of 1995, 44 U.S.C. 35, as forms and other available documents amended. [Docket No. FR±4200±N±61] submitted to OMB may be obtained Dated: May 7, 1997. Submission for OMB Review: from Ms. Weaver. David S. Cristy, Acting Director, Information Resources Comment Request SUPPLEMENTARY INFORMATION: The Management Policy and Management AGENCY: Office of Administration, HUD. Department has submitted the proposal Division. for the collection of information, as ACTION: Notice. described below, to OMB for review, as Notice of Submission of Proposed SUMMARY: The proposed information required by the Paperwork Reduction Information Collection to OMB Act (44 U.S.C. Chapter 35). collection requirement described below Title of Proposal: Report on Section 8 has been submitted to the Office of The notice lists the following Program Utilization. Management and Budget (OMB) for information: (1) The title of the review, as required by the Paperwork information collection proposal; (2) the Office: Housing. Reduction Act. The Department is office of the agency to collect the OMB Approval Number: 2502–0439. soliciting public comments on the information; (3) the OMB approval Description of the Need for the subject proposal. number, if applicable; (4) the Information and its Proposed Use: The DATES: Comments due date: June 16, description of the need for the data collected will be used to monitor 1997. information and its proposed use; (5) the following: the rate at which Section ADDRESSES: Interested persons are the agency form number, if applicable; 8 programs are leased; minimized invited to submit comments regarding (6) what members of the public will be exposure to vacancy losses; project this proposal. Comments must be affected by the proposal; (7) how vacancy rates; identify and document received within thirty (30) days from the frequently information submissions will cases where a reduction in the number date of this notice. Comments should be required; (8) an estimate of the total of contracted units are leased to elderly, refer to the proposal by name and/or number of hours needed to prepare the handicapped, or disabled tenants; and OMB approval number should be sent information submission including retrieve information to answer to: Joseph F. Lackey, Jr., OMB Desk number of respondents, frequency of questions. Officer, Office of Management and response, and hours of response; (9) Form Number: HUD–52684. Budget, Room 10235, New Executive whether the proposal is new, an Respondents: State, Local or Tribal Office Building, Washington, DC 20503. extension, reinstatement, or revision of Government, Business or Other for- FOR FURTHER INFORMATION CONTACT: an information collection requirement; profit, and not-for-profit institutions. Kay F. Weaver, Reports Management and (10) the names and telephone Officer, Department of Housing and numbers of an agency official familiar Frequency of Submission: Quarterly Urban Development, 451 7th Street, with the proposal and of the OMB Desk and annually. Southwest, Washington, DC 20410, Officer for the Department. Reporting Burden:

Number of re- × Frequency of × Hours per Burden spondents response response = hours

Quarterly Reporting ...... 3,814 4 .25 3,814 Annual Reporting ...... 16,681 1 .25 4,170

Total Estimated Burden Hours: 7,984. surplus Federal property reviewed by the homeless. Today’s Notice is for the Status: Reinstatement, without HUD for suitability for possible use to purpose of announcing that no changes. assist the homeless. additional properties have been Contact: Barbara D. Hunter, HUD, EFFECTIVE DATE: May 16, 1997. determined suitable or unsuitable this (202) 708–3944; Joseph F. Lackey, Jr., week. OMB, (202) 395–7316. FOR FURTHER INFORMATION CONTACT: Mark Johnston, Department of Housing Dated: May 9, 1997. Dated: May 7, 1997. and Urban Development, Room 7256, Jacquie M. Lawing, [FR Doc. 97–12841 Filed 5–15–97; 8:45 am] 451 Seventh Street SW, Washington, DC General Deputy Assistant Secretary. BILLING CODE 4210±01±M 20410; telephone (202) 708–1226; TDD [FR Doc. 97–12839 Filed 5–15–97; 8:45 am] number for the hearing- and speech- BILLING CODE 4210±29±M impaired (202) 708–2565, (these DEPARTMENT OF HOUSING AND telephone numbers are not toll-free), or URBAN DEVELOPMENT call the toll-free Title V information line DEPARTMENT OF HOUSING AND [Docket No. FR±4235±N±03] at 1–800–927–7588. URBAN DEVELOPMENT SUPPLEMENTARY INFORMATION: In Federal Property Suitable as Facilities accordance with the December 12, 1988 [Docket No. FR±4213±C±02] To Assist the Homeless court order in National Coalition for the AGENCY: Office of the Assistant Homeless v. Veterans Administration, Notice of Funding Availability for FY Secretary for Community Planning and No. 88–2503–OG (D.D.C.), HUD 1997 Historically Black Colleges and Development, HUD. publishes a notice, on a weekly basis, Universities Program; Correction ACTION: Notice. identifying unutilized, underutilized, excess and surplus Federal buildings AGENCY: Office of the Assistant SUMMARY: This notice identifies and real property that HUD has Secretary for Community Planning and unutilized, underutilized, excess, and reviewed for suitability for use to assist Development, HUD. 27062 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

ACTION: Notice of funding availability; applicants that receive the minimum DEPARTMENT OF THE INTERIOR correction. number of points (70 points) under the four selection criteria (Addressing the Fish and Wildlife Service SUMMARY: This notice corrects Program Objective; Distress, Need(s) and information that was provided in the Availability of an Environmental Impact; Capability; and Feasibility) may notice of funding availability (NOFA) Assessment and Receipt of an earn bonus points for, among other for the Historically Black Colleges and Application for an Incidental Take Universities Program for fiscal year factors, affirmatively furthering fair Permit for the Kern Water Bank Natural 1997, published in the Federal Register housing. While the heading for the Community Conservation Plan/Habitat on May 12, 1997 (62 FR 26180). This paragraph describing these bonus points Conservation Plan, Kern County, notice clarifies that 10 bonus points are (paragraph d. under the subheading California available for eligible applicants who ‘‘Bonus Points,’’ in section I.C. of the work with their jurisdictions to NOFA) indicates that the applicant may AGENCY: Fish and Wildlife Service. affirmatively further fair housing. earn 10 bonus points for affirmatively ACTION: Notice of availability. DATES: This notice does not affect the furthering fair housing, the first sentence of that paragraph indicates that SUMMARY: This notice advises the public deadline date provided in the May 12, that the Kern Water Bank Authority 1997 NOFA. Applications must still be applicants may earn only 5 bonus points. HUD is publishing this notice to (Authority) has applied to the Fish and received at HUD Headquarters and field Wildlife Service for two 75-year clarify that 10 bonus points will be offices before 5 p.m. eastern standard incidental take permits pursuant to awarded to eligible applicants that work time on July 28, 1997. Section 10(a)(1)(B) of the Endangered ADDRESSES: This notice does not affect with their jurisdictions to affirmatively Species Act of 1973, as amended (Act), the application submission information further fair housing. relating to the Kern Water Bank’s 19,900 provided in the May 12, 1997 NOFA. Accordingly, FR Doc. 97–12452, the acres of land in Kern County, California. An originally signed application and NOFA for the Historically Black The application has been assigned two copies shall be submitted to the Colleges and Universities Program, permit number PRT–828086. One following address: Processing and published in the Federal Register on permit, the Project Permit, is to allow Control Branch, Office of Community May 12, 1997 (62 FR 26180), is amended the incidental take by the Authority for Planning and Development, Department on page 26185, column 2, in section I.C., the operation of the proposed project on of Housing and Urban Development, under the subheading ‘‘Bonus Points,’’ the Kern Water Bank. The second 451 7th Street, S.W., Room 7251, by correcting the first sentence of permit, the Master Permit, is to allow Washington, D.C., 20410–3500; ATTN: paragraph d. (‘‘Affirmatively Furthering third parties in designated areas of the HBCU Program. In addition, one copy of southern San Joaquin Valley, California, the application must also be sent to the Fair Housing, 10 points’’) to read as follows: to acquire credits in the conservation Community Planning and Development bank to be established by the Authority (CPD) Director in the HUD field office I. Purpose, Objectives, and Substantive with the prior approval of the Service serving the State in which the applicant Description and to become included parties under is located. A listing of HUD field offices * * * * * the Master Permit. In certain with HBCUs located in their jurisdiction circumstances, the Authority also may appeared as Appendix A to the May 12, C. Selection Process, Optional Match be able to use conservation credits on its 1997 NOFA. and Selection Criteria own behalf for other projects and FOR FURTHER INFORMATION CONTACT: Ms. thereby rely on the incidental take * * * * * Delores Pruden or Mr. John Simmons, authority of the Master Permit. Historically Black Colleges and Bonus Points (maximum points: 25) The proposed incidental take covered Universities Program, Office of * * * * * by the Project Permit would occur due Community Planning and Development, d. Affirmatively Furthering Fair to habitat loss resulting from the Department of Housing and Urban Authority’s proposed project to use the Housing, 10 points. Development, 451 7th St., S.W., Kern Water Bank to acquire and bank Washington, DC 20410; telephone (202) * * * * * water when available, to utilize the 708–1590 (this is not a toll-free Ten bonus points will be awarded to banked water for agricultural and other number). Hearing- and speech-impaired applicants who work with their purposes, to engage in farming activities persons may access this number via jurisdictions to affirmatively further fair and to create a conservation bank TTY by calling the Federal Information housing. (collectively, the Project). The proposed Relay Service toll-free at 1–800–877– incidental take covered by the Master * * * * * 8339. Information may also be obtained Permit would occur due to habitat loss Dated: May 12, 1997. from the HUD field office located in the resulting from projects of third persons, applicant’s geographic area. See Kenneth C. Williams, and other projects of the Authority in Appendix A to the May 12, 1997 NOFA Deputy Assistant Secretary for Grant Kern County, the Allensworth area of for names, addresses and telephone Programs. Tulare County, and the Kettleman Hills numbers, or for general information, [FR Doc. 97–12843 Filed 5–15–97; 8:45 am] area of Kings County. applicants can call Community BILLING CODE 4210±29±P The Authority requests coverage of 17 Connections at 1–800–998–9999. listed species (5 plant, 12 animal) and SUPPLEMENTARY INFORMATION: On May an additional 28 unlisted species (10 12, 1997, HUD published in the Federal plant, 18 animal) that may be found on Register the Notice of Funding the Kern Water Bank and are currently Availability (NOFA) for the Historically sufficiently rare that they may become Black Colleges and Universities Program listed at some time in the near future. for fiscal year (FY) 1997 (62 FR 26180). The Authority further requests coverage The May 12, 1997 NOFA provided that of an additional 116 species (29 plant, Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27063

87 animal) which the Authority believes 828086 when submitting comments. storage of water in aquifers during times may become rare over the life of the The documents will available for public of surplus for later recovery during Permits and which may conceivably inspection, by appointment, during times of shortage. The primary come to colonize the Kern Water Bank, normal business hours at the above environmental objective is to set aside but for which the impact of the Project address. Individuals wishing copies of large areas of the Kern Water Bank for should be negligible or beneficial. The the application, Environmental threatened and endangered species and Natural Community Conservation Plan/ Assessment, Implementing Agreement, to implement a program to protect and Habitat Conservation Plan (Plan) Conservation Bank Agreement or enhance the habitat. proposes to conserve all 161 species Security Agreement for review should The basic objectives of the proposed according to standards required for immediately contact Mr. Kenneth Plan for the Kern Water Bank project are listed species under the Act. Unlisted Bonesteel, Project Manager, Kern Water to (1) allow the economical covered species would be named on the Bank Authority, 33141 E. Lerdo development of water recharge and permits with delayed effective dates. Highway, P.O. Box 80607, Bakersfield, recovery facilities, (2) preserve Barring unforeseen circumstances, California 93380–0607, telephone (805) compatible upland habitat and other incidental take of the unlisted covered 399–8735; fax (805) 399–9751. sensitive areas of natural habitat and species would be authorized upon their FOR FURTHER INFORMATION CONTACT: Mr. rare plants, (3) conserve species listed as listing under the Act. The draft Peter A. Cross, San Joaquin Valley threatened or endangered pursuant to Implementing Agreement contains a No Branch Chief, Sacramento Field Office, Federal and State environmental laws Surprises assurance, whereby no telephone (916) 979–2710; fax (916) (listed species), (4) recreate intermittent additional mitigation or compensation 979–2723. wetland/rangeland habitat, (5) provide a conservation bank for third parties, and will be required of the permittee, except SUPPLEMENTARY INFORMATION: The under extraordinary circumstances. (6) permit farming. ‘‘take’’ of threatened and endangered Of the 19,900 acres that constitute the Concurrently with the proposed species is prohibited under Section 9 of issuance of the Federal permits, the Kern Water Bank property, 5,900 acres the Act and its implementing are proposed for basins for routine California Department of Fish and Game regulations. ‘‘Take’’ is defined, in part, proposes to issue management recharge activities and 481 acres will be as killing, harming, or harassing listed used for permanent water banking authorizations for the 161 species under species, including significant habitat Sections 2081 and 2835 of the California facilities. Between the basins will be modification that results in death of or areas that will never be flooded. Some Endangered Species Act. injury to listed species. Under limited The Fish and Wildlife Service also of these areas have existing populations circumstances, the Service may issue of listed plants. These plants will be announces the availability of an permits to take listed species if such Environmental Assessment for the preserved in special areas totaling 960 taking is incidental to otherwise lawful acres. Other areas between basins, incidental take permit application, activities. Regulations governing which includes the proposed Plan fully totaling 5,592 acres, will revert to permits are found at Title 50, Code of habitat. Additionally, 530 acres will be describing the proposed project and Federal Regulations, sections 17.22 and mitigation, and the accompanying preserved and managed for mitigation of 17.32. The proposed Master and Project previous Department of Water Implementing Agreement. In addition, Permits for Kern Water Bank would Resources projects. Of the remaining the application package includes a draft authorize the incidental take of 17 land, 3,170 acres will be used for Conservation Bank Agreement, and a species: San Joaquin kit fox (Vulpes farming and 3,267 acres will be used as draft Security Agreement. This Notice is macrotis mutica), Tipton kangaroo rat a conservation bank (to be used as provided pursuant to Section 10(a) of (Dipodomys nitratoides nitratoides), potential mitigation for activities by the Act and National Environmental blunt-nosed leopard lizard (Gambelia third parties within designated areas of Policy Act regulations (40 CFR 1506.6). silus), giant kangaroo rat (Dipodomys the Southern San Joaquin Valley). Of the Comments are specifically requested ingens), American peregrine falcon 3,267 acres in the conservation bank, on the appropriateness of the No (Falco peregrinus anatum), valley the Authority may use up to 490 acres Surprises assurance contained in this elderberry longhorn beetle (Desmocerus for commercial development. application, specifically outlined in californicus dimorphus), giant garter The Project incorporates mitigation section 5 of the Implementation snake (Thamnophis gigas), Aleutian and compensation for impacts to Agreement as it applies to the Canada goose (Branta canadensis wildlife habitat and other natural Authority’s permit and the Master leucopareia), vernal pool fairy shrimp resources resulting from permit. All comments received, (Branchinecta lynchi), conservancy fairy implementation of the Project. including names and addresses, will shrimp (Branchinecta conservatio), Approximately 10,349 acres, or over 52 become part of the Administrative vernal pool tadpole shrimp (Lepidurus percent, of the Project area will be set Record and may be made available to packardi), longhorn fairy shrimp aside and limited to uses that are the public. (Branchinecta longiantenna), San compatible with the habitat values of DATES: Written comments on the permit Joaquin woolly-threads (Lembertia the property. These lands will be application, Environmental Assessment congdonii), Hoover’s woolly-star protected and managed for their wildlife and Implementing Agreement should be (Eriastrum hooveri), California jewel habitat values throughout the life of the received on or before June 30, 1997. flower (Caulanthus californicus), Kern Project. Certain lands will be protected ADDRESSES: Comments regarding the mallow (Eremalche parryi kernensis), from development in perpetuity upon application or adequacy of the and Bakersfield cactus (Opuntia the approval of the Project. Other lands Environmental Assessment and basilaris var. treleasei). will be protected in perpetuity upon the Implementing Agreement should be use of conservation credits established addressed to the Fish and Wildlife Background by the Project. Service, Sacramento Field Office, 3310 The Plan documents a plan to The Master Permit will allow the El Camino Avenue, Suite 130, accomplish both water conservation and incidental take of listed species by third Sacramento, California 95821–6340. environmental objectives. The primary persons, and in certain circumstances Please refer to permit number PRT– water conservation objective is the the Authority, for activities in specified 27064 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices areas of Kern County, the Allensworth amount of acreage that could be covered A majority of tribal leaders did not area of Tulare County, and the by recharge basins to 3,258 acres, and agree with the BIA’s work product, and Kettleman Hills area of Kings County, (4) a no permit alternative. requested further consultation and California. Third persons will have to This notice is provided pursuant to establishment of a Tribal Workgroup to enter into an agreement with the Fish section 10(a) of the Endangered Species conduct a similar review. A small tribal and Wildlife Service which sets out that Act and the National Environmental workgroup was formed in July 1996, in person’s mitigation obligations, Policy Act of 1969 regulations (40 CFR consultation with the National Congress including the number of off-site acres 1506.6). The Fish and Wildlife Service of American Indians. The Workgroup the person must acquire in order to will evaluate the application, associated reviewed the BIA’s work product and obtain incidental take authority. Once documents, and comments submitted issued its findings recommendations for the Authority sells the conservation thereon to determine whether the continuation of the effort to define a credits to the third person, the Fish and application meets the requirements of tribal shares process. This workgroup, Wildlife Service will issue a certificate the National Environmental Policy Act however, did not continue in its of inclusion to that person establishing regulations and section 10(a) of the advisory capacity, due to tribal that the person has the authority to Endangered Species Act. If it is dissatisfaction with the lack of equal commit the incidental take of listed determined that the requirements are representation of self-governance, self- species pursuant to the Master Permit. met, a permit will be issued for the determination and direct service Tribes. The purpose of the Master Permit is to incidental take of the listed species. The In response to this dissatisfaction, the encourage the use of the conservation final permit decision will be made no Deputy Commissioner formed a more bank (thereby insuring protection in sooner than 45 days from the date of expanded, representative workgroup in perpetuity of bank lands) and to this notice. September 1996. This tribal workgroup streamline the Fish and Wildlife is comprised of 24 tribal representatives; Service’s permitting process for projects Dated: May 8, 1997. Don Weathers, two from each of the twelve BIA Areas. with minor impacts. The workgroup has assisted the BIA in The Implementing Agreement Acting Regional Director, Region 1, Portland, Oregon. reviewing and refining a list of contains a section which implements inherently federal functions and non- [FR Doc. 97–12854 Filed 5–15–97; 8:45 am] the Service’s ‘‘No Surprises’’ Policy. inherently federal functions of the BIA. Under this section, the Fish and BILLING CODE 4310±55±P This listing will be one of many topics Wildlife Service may not require reviewed at the consultation sessions. additional mitigation or compensation, DEPARTMENT OF THE INTERIOR The schedule for the consultation including commitments of additional sessions is listed below. land or financial compensation, from the Authority unless the Fish and Bureau of Indian Affairs Summary Wildlife Service makes a finding of Notice of Schedule of Regional The BIA will be holding three ‘‘extraordinary circumstances,’’ defined Consultation Sessions on Tribal regional consultation sessions on the as a significant and substantial adverse Shares Tribal Shares Process during June and change in the population of a species July 1997. The sessions are for tribal covered by the Plan. If the Fish and Introduction consultation on the Tribal Shares Wildlife Service makes a finding of Process. Tribes will have the extraordinary circumstances which The Bureau of Indian Affairs (BIA) is opportunity to review and provide warrants requiring additional mitigation authorized by the Indian Self- comments on the BIA’s identification of or compensation, the additional Determination and Education inherently federal and non-inherently mitigation or compensation the Fish and Assistance Act, as amended, Public Law federal functions of the BIA. Wildlife Service may require is limited 93–638, to implement a process to modifying the management of the whereby Tribes can contract and Regional Consultation Sessions: The Kern Water Bank, excluding that portion compact functions of the BIA. Public three regional consultation sessions will of the bank used for recharge basins and Law 103–413 expanded the scope of accommodate all twelve Areas of the that portion used for farming. If Public Law 93–638 by providing Tribes BIA. Billings, Aberdeen, Eastern and additional land or financial the option to take their ‘‘share’’ from Minneapolis Area tribes will attend compensation is needed, the primary BIA administrative and program Session 1, in Bloomington, MN. The responsibility to provide this accounts, based on savings due to Juneau, Portland, and Sacramento Area compensation rests with the Federal contracting and also based on additional tribes will attend Session 2, in Seattle, government. administrative functions being assumed WA. Phoenix, Albuquerque, Navajo, In compliance with National by Tribes, without regard to Anadarko, and Muskogee Area tribes Environmental Policy Act, the organizational level. This process is will attend Session 3, in Tempe, AZ. Environmental Assessment examines known as the ‘‘Tribal Shares Process.’’ Areas may hold additional Area-wide the environmental impacts of issuing The BIA has been working for the past consultation sessions if needed. two years to define a ‘‘tribal shares the proposed Incidental Take Permits Dates and Locations and the effects of implementing the determination process’’ to identify proposed Plan and alternative plans. which functions currently performed by Session 1. June 17–18, 1997, Although a number of alternative the BIA can be assumed by Tribes. A Bloomington, MN. Days Inn conservation configurations and federal workgroup was formed in April Airport, 1901 Killebrew Drive, mechanisms were considered, the 1995 to identify which BIA functions Bloomington, MN 55425. Environmental Assessment analyzes were ‘‘inherently federal,’’ and which Telephone (612) 854–8400. four alternatives in detail. The BIA functions were available for Session 2. June 24–25, 1997, Seattle, Environmental Assessment considers (1) contracting and compacting. The WA. Radisson Hotel Seattle Airport, the proposed action, (2) the proposed workgroup submitted their work 17001, Pacific Highway South, action excluding the Master Permit, (3) product to the Area Offices for review Seattle, WA 98188. Telephone (206) the proposed action, but reducing the and tribal consultation. 244–6000. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27065

Session 3. July 22–23, 1997, Tempe, AZ. SUMMARY: This notice terminates R&PP Management Act (FLPMA) of 1976, (90 Sheraton Tempe Mission Palms, 60 Classification N–58975. The termination STAT. 2750, 2757), (43 U.S.C. 1713, East 5th Street, Tempe, AZ 85281. of this classification is for record- 1719), (43 CFR 2711.3–3 [1] and [5]) and Telephone (602) 894–1400, or (800) clearing purposes. The subject lands (43 CFR 270) at not less than fair market 547–8705. will remain segregated from all forms of value. The land will not be offered for FOR FURTHER INFORMATION CONTACT: For appropriation under the public land sale until at least 60 days after the date further information, contact Shirley laws, including the general mining laws, this notice is published in the Federal LaCourse, Bureau of Indian Affairs, at due to an overlapping segregation for Register. telephone (202) 208–4172. disposal by exchange. EFFECTIVE DATE: Termination of the Sixth Principal Meridian, Wyoming Conclusion classification is effective upon T. 51 N., R. 102 W., The consultation sessions are open to publication of this notice in the Federal Tract 72C. all interested parties. Register. Containing 9 acres more or less. Dated: May 12, 1997. FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: Hilda A. Manuel, Sharon DiPinto, BLM Las Vegas District Duane Whitmer, Area Manager, Bureau Deputy Commissioner of Indian Affairs. Office, 4765 Vegas Drive, NV 89108, 702–647–5062. Detailed information of Land Management, Cody Resource [FR Doc. 97–12926 Filed 5–15–97; 8:45 am] concerning this action is available for Area, P.O. Box 518, Cody, Wyoming BILLING CODE 4310±02±P review at the office of the Bureau of 82414–0518, 307–587–2216. Land Management, Las Vegas District, SUPPLEMENTARY INFORMATION: The land DEPARTMENT OF THE INTERIOR 4765 W. Vegas Drive, Las Vegas, described is hereby segregated from Nevada. appropriation under the public land SUPPLEMENTARY INFORMATION: Bureau of Indian Affairs On June laws, including the mining laws, 21, 1994, the Clark County School pending disposition of this action, or Indian Gaming; Notice of Approved District filed an application with BLM 270 days from the date of publication of Tribal-State Compact for a middle school site pursuant to the this notice, which ever occurs first. The R&PP Act. On February 16, 1996, the land would be offered by direct sale to lands requested were classified suitable SUMMARY: Pursuant to Section 11 of the for lease/conveyance under that act. The Peter M. Scripps, an adjacent private Indian Gaming Regulatory Act, 25 school was not constructed and the landowner, at fair market value. Mr. U.S.C. 2710, the Secretary of the Interior applicant withdrew their application by Scripps would pay almost all of the shall publish, in the Federal Register, letter dated February 6, 1997. Pursuant administrative costs of the sale. This notice of approved Tribal-State to the R&PP Act of June 14, 1926, as sale is consistent with Bureau of Land Compacts for the purpose of engaging in amended (43 U.S.C. 869 et seq.), the Management policies and the Cody Class III gaming on Indian lands. The regulation contained in 43 CFR 2091.7– Resource Management Plan (RMP) Assistant Secretary—Indian Affairs, 1, and the authority delegated by approved November 8, 1990. As Department of the Interior, through her Appendix 1 of the Bureau of Land indicated in the Cody RMP, the delegated authority, has approved the Management Manual 1203, R&PP preferred method of land disposal to a Tribal State Gaming Compact between Classification N–58975 is hereby private landowner is by exchange. the Confederated Salish and Kootenai terminated in its entirety for the However, because of the small acreage Tribes of the Flathead Nation and the following described land: and relatively low dollar value State of Montana, which was executed Mount Diablo Meridian, Nevada involved, BLM believes a sale is more on March 14, 1997. appropriate. DATES: This action is effective May 16, T. 23 S., R. 62 E., 1997. Sec. 6, Lot 5. The purpose of this sale is to resolve FOR FURTHER INFORMATION CONTACT: Containing 37.98 acres. a conflict with an inadvertent placement George T. Skibine, Director, Indian Dated: May 2, 1997. of a private water well on public lands, Gaming Management Staff, Bureau of Michael F. Dwyer, to consolidate Mr. Scripps’ holdings, Indian Affairs, Washington, D.C. 20240, and to dispose of an isolated parcel of District Manager, Las Vegas, NV. (202) 219–4068. public land that is difficult and [FR Doc. 97–12896 Filed 5–15–97; 8:45 am] uneconomical to manage. The 9 acre Dated: May 8, 1997. BILLING CODE 4310±HC±M Ada E. Deer, tract is adjoined on two sides by Mr. Assistant Secretary—Indian Affairs. Scripps’ land, and by state of Wyoming land on the other two sides. There is [FR Doc. 97–12821 Filed 5–15–97; 8:45 am] DEPARTMENT OF THE INTERIOR virtually no public access to the tract, BILLING CODE 4310±02±P Bureau of Land Management except by foot or horseback across 0.75 [WY±985±0777±66; WYW±138720] to 1.5 miles of public and state land to DEPARTMENT OF THE INTERIOR the north and east. The unfenced tract Realty Action; Direct Sale of Public consists of a moderately steep hillside Bureau of Land Management Land; Cody Resource Area, Wyoming covered with mostly sagebrush, grasses, and some trees. Little, if any, use of the [NV±930±1430±01; N±58975] AGENCY: Bureau of Land Management, land by the public has occurred in the Interior. Termination of Recreation and Public past because of the isolated location. A ACTION: Notice of realty action. Purposes (R&PP) Classification; public scoping notice regarding this Nevada SUMMARY: The Bureau of Land proposed sale was published in the Management has determined that the Cody Enterprise for three consecutive AGENCY: Department of the Interior, weeks from July 29, 1996 to August 12, Bureau of Land Management. following land is suitable for direct sale to Peter M. Scripps under Sections 203 1996. No adverse comments were ACTION: Notice. and 209 of the Federal Land Policy and received. 27066 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Mr. Scripps would be required to DEPARTMENT OF THE INTERIOR Mexico Principal Meridian, Colorado, submit a nonrefundable application fee was accepted April 21, 1997. of $50.00 in accordance with 43 CFR Bureau of Land Management The protraction diagram No. 52 in T. 2720, for conveyance of all unreserved [CO±956±97±1420±00] 3 N., R. 79 W., Sixth Principal Meridian, mineral interests in the lands. There are Colorado, was accepted April 14, 1997. no grazing privileges associated with the Colorado: Filing of Plats of Survey These surveys were requested by BLM land. for administrative purposes. May 7, 1997. Any patent issued will be subject to Barry G. Krebs, The plats of survey of the following all valid existing rights. Specific patent Acting Chief Cadastral Surveyor for Colorado. described land, will be officially filed in reservations include: [FR Doc. 97–12844 Filed 5–15–97; 8:45 am] the Colorado State Office, Bureau of 1. A right-of-way thereon for ditches Land Management, Lakewood, BILLING CODE 4310±JB±P or canals constructed by the authority of Colorado, effective 10:00 am., May 7, the United States pursuant to the Act of 1997. All inquiries should be sent to the DEPARTMENT OF THE INTERIOR August 30, 1890 (43 U.S.C. 945). Colorado State Office, Bureau of Land 2. All oil and gas will be reserved to Management, 2850 Youngfield Street, Bureau of Reclamation the United States, together with the Lakewood, Colorado 80215. right to prospect for, mine, and remove The plat (in 4 sheets) representing the Information Collection Submitted to the same. dependent resurvey of a portion of the the Office of Management and Budget 3. All other existing rights of record. Tenth Standard Parallel North, on the for Review Under the Paperwork The fair market value, planning south boundary, portions of the east and Reduction Act west boundaries, a portion of the document, and environmental AGENCY: Bureau of Reclamation, assessment covering the proposed sale subdivisional lines, and certain mineral claims, and the subdivision survey of Interior. will be available for review at the ACTION: Notice. Bureau of Land Management, Cody sections 24 and 33, T. 41 N.,R. 11 W., Resource Area, 1002 Blackburn, Cody, New Mexico Principal Meridian, Group SUMMARY: In compliance with the Wyoming 82414. 1006, Colorado, was accepted April 16, Paperwork Reduction Act (44 U.S.C. 1997. 3501 et seq.), this notice announces that For a period of 45 days from the date This survey was requested by the the Information Collection Request (ICR) this notice is published in the Federal Forest Service for administrative abstracted below has been forwarded to Register, interested parties may submit purposes. the Office of Management and Budget comments to the Cody Resource Area, The plat representing the dependent (OMB) for review and comment. The P.O. Box 518, Cody, Wyoming 82414– resurvey of a portion of the ICR describes the nature of the 0518. Any adverse comments will be subdivisional lines and the subdivision information collection and its expected evaluated by the State Director, who of sections 27 and 34, and a metes-and- cost and burden. may vacate or modify this realty action bounds survey of a portion of the west and issue a final determination. In the right-of-way of Grand County Road No. DATES: Comments must be submitted on absence of any action by the State 33 in sections 27 and 34, and a survey or before June 16, 1997. Director, this realty action will become of Parcel A in section 34, T. 1 N., R. 79 ADDRESSES: Comments on this the final determination of the W., Sixth Principal Meridian, Group information collection should be Department of Interior. 1017, Colorado, was accepted April 28, submitted to the Office of Information Comments, including names and 1997. and Regulatory Affairs, Office of street addresses of respondent will be The plat representing the dependent Management and Budget, Attention: available for public review at the Cody resurvey of a portion of the west Desk Officer for the Bureau of Resource Area Office, 1002 Blackburn, boundary and subdivisional lines, and Reclamation, Paperwork Reduction Cody, Wyoming during regular business the subdivision of section 19, and a Project (1006–0005), Washington DC hours (7:30 a.m. to 4:30 p.m.) Monday metes-and-bounds survey of a portion of 20503, Telephone (202) 395–7340. A through Friday, except holidays. the east right-of-way of Grand County copy of your comments should also be Individual respondents may request Road No. 3 in section 19, T. 1 N., R. 78 directed to the Bureau of Reclamation, confidentiality. If you wish to withhold W., Sixth Principal Meridian, Group D–5200, P.O. Box 25007, Denver, your name or address from public 1017, Colorado, was accepted April 28, Colorado 80225–0007. review or from disclosure under the 1997. FOR FURTHER INFORMATION CONTACT: Freedom of Information Act, you must The plat representing the dependent Bureau of Reclamation’s Information state this prominently at the beginning resurvey of portions of the subdivisional Collection Officer, Susan Rush, at (303) of your comments. Such requests will be lines and Tract 51, and the survey of the 236–0305 extension 462 or by Internet honored to the extent allowed by law. subdivision of Section 22, T. 1 N., R. 90 at [email protected]. W., Sixth Principal Meridian, Group All submissions from organizations or SUPPLEMENTARY INFORMATION: businesses, and from individuals 1122, Colorado, was accepted April 21, identifying themselves as 1997. Title: Individual Landholder’s representatives or officials of The supplemental plat created to Certification and Reporting Forms for organizations or businesses, will be facilitate a land exchange, creating new Acreage Limitation, 43 CFR Part 426. made available for public inspection in lots 14 and 15 from original lot 13 in Abstract: This information collection their entirety. section 11, T. 5 S., R. 81 W., Sixth requires certain landholders to complete Principal Meridian, Colorado, was forms demonstrating their compliance Dated: May 6, 1997. accepted April 14, 1997. with the acreage limitation provisions of Darrell Barnes, The supplemental plat created to reclamation law. These forms are Worland District Manager. facilitate a land exchange, creating new submitted to water districts who use the [FR Doc. 97–12847 Filed 5–15–97; 8:45 am] lots 3 and 4 from previous lot 1 in information to establish each BILLING CODE 4310±22±P section 29, T. 50 N., R. 9 E., New landholder’s status with respect to Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27067 landownership limitations, full-cost 29, 1997, have been summarized and Bureau Form Numbers: 7–21SUMM– pricing thresholds, lease requirements, included in the request for OMB R, 7–21SUMM–C, TAB A, B, C, D, E, F. and other provisions of reclamation law. approval. OMB Approval Number: 1006–0006. All landholders whose entire westwide Dated: April 17, 1997. Frequency: Annually. landholding totals 40 acres or less is J. Austin Burke, exempt from the requirement to submit Director, Program Analysis Office. Description of Respondents: forms. Landholders who are ‘‘qualified [FR Doc. 97–12852 Filed 5–15–97; 8:45 am] Contracting organizations for recipients’’ have RRA forms submittal Reclamation project irrigation water. thresholds of 80 acres or 240 acres BILLING CODE 4310±94±M Estimate of Burden: Public reporting depending on the district’s RRM forms burden for this collection of information submittal threshold category where the DEPARTMENT OF THE INTERIOR is estimated to average 40 hours per land is held. response. Bureau Form Numbers: 7–21INFO, 7– Bureau of Reclamation 2180, 7–2180EZ, 7–2181, 7–2184, 7– Estimated Number of Respondents: 2190, 7–2190EZ, 7–2191, 7–2194, 7– Information Collection Submitted to 276. 21PE, 7–21TRUST, 7–21VERIFY, 7– the Office of Management and Budget Estimated Number of Responses per 21IXS, 7–21FC, 7–21CONT–I, 7– for Review Under the Paperwork Respondent: 1.25. 21CONT–L, and 7–21CONT–O. Reduction Act OMB Approval Number: 1006–0005. Estimated Annual Responses: 345. AGENCY: Bureau of Reclamation, Frequency: Annually. Interior. Estimated Total Annual Burden on Description of Respondents: Owners Respondents: 13,800 hours. ACTION: Notice. and lessees of land on Federal Reclamation will display a valid OMB Reclamation projects, whose SUMMARY: In compliance with the control number on either the forms or landholdings exceed specified RRA Paperwork Reduction Act (44 U.S.C. the instructions associated with the forms submittal thresholds. 3501 et seq.), this notice announces that forms. Persons who are required to Estimated Number of Respondents: the Information Collection Request (ICR) respond to the information collection 32,100. abstracted below has been forwarded to need not respond unless the OMB Estimated Number of Responses per the Office of Management and Budget control number is current. Respondent: 1.02. (OMB) for review and comment. The OMB has up to 60 days to approve or Estimated Annual Responses: 32,750. ICR describes the nature of the disapprove this information collection Estimated Total Annual Burden on information collection and its expected but may respond after 30 days, Respondents: 11,500. cost and burden. therefore, public comment should be Reclamation will display a valid OMB DATES: Comments must be submitted on control number on either the forms or submitted to OMB within 30 days in or before June 16, 1997. order to assure maximum consideration. the instructions associated with the ADDRESSES: Comments on this forms. Persons who are required to The public is being requested to information collection should be comment on: respond to the information collection submitted to the Office of information need not respond unless the OMB and Regulatory Affairs, Office of a. Whether the collection of control number is current. Management and Budget, Attention: information is necessary for the proper OMB has up to 60 days to approve or Desk Officer for the Bureau of performance of the functions of disapprove this information collection Reclamation, Paperwork Reduction Reclamation, including whether the but may respond after 30 days; Project (1006–0006), Washington, DC information will have practical utility; therefore, public comment should be 20503, Telephone (202) 395–7340. A b. The accuracy of Reclamation’s submitted to OMB within 30 days in copy of your comments should also be estimate of the burden of the collection order to assure maximum consideration. directed to the Bureau of Reclamation, of information including the validity of The public is being requested to D–5200, P.O. Box 25007, Denver, the methodology and assumptions used; comment on: Colorado 80225–0007. a. Whether the collection of c. The quality, utility, and clarity of FOR FURTHER INFORMATION CONTACT: the information to be collected; and information is necessary for the proper Bureau of Reclamation’s Information performance of the functions of Collection Officer, Susan Rush, at (303) d. How to minimize the burden of the Reclamation, including whether the 236–0305 extension 462 or by Internet collection of information on those who information will have practical utility; at [email protected] are to respond, including the use of b. The accuracy of Reclamation’s appropriate automated electronic, estimate of the burden of the collection SUPPLEMENTARY INFORMATION: mechanical, or other forms of of information including the validity of Title: Certification Summary Form, information technology. the methodology and assumptions used; Reporting Summary Form for Acreage All comments received on this c. The quality, utility, and clarity of Limitation, 43 CFR 426. information collection requested in the information to be collected; and Abstract: These forms are to be used Federal Register notice 62 FR 4329, Jan. d. How to minimize the burden of the by water district offices to summarize 29, 1997, have been summarized and collection of information on those who individual landholder certification and included in the request for OMB are to respond, including the use of reporting forms as required by the approval. appropriate automated electronic, Reclamation Reform Act of 1982 (Title mechanical, or other forms of II of Pub. L. 97–293) and 43 CFR Part Dated: April 17, 1997. information technology. 426, Acreage Limitation Rules and J. Austin Burke, All comments received on this Regulations. This information allows Director, Program Analysis Office. information collection requested in Reclamation to establish water users’ [FR Doc. 97–12853 Filed 5–15–97; 8:45 am] Federal Register notice 62 FR 4329, Jan. compliance with Reclamation law. BILLING CODE 4310±94±M 27068 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

DEPARTMENT OF JUSTICE in regard to specific topics but all whether the information will have evaluations must, to the extent possible, practical utility; Office of Justice Programs collaborate with the national evaluation • Evaluate the accuracy of the of this program. agency’s estimate of the burden of the [OJP(NIJ)±1131] Interested organizations should call proposed collection of information, RIN 1121±ZA77 the National Criminal Justice Reference including the validity of the Service (NCJRS) at 1–800–851–3420 to methodology and assumptions used; National Institute of Justice obtain a copy of ‘‘Solicitation for • Enhance the quality, utility, and Solicitation for Evaluations of the Evaluations of the Residential Substance clarity of the information to be Residential Substance Abuse Abuse Treatment for State Prisoners collected; and Treatment for State Prisoners Program Program (1997)’’ (refer to document no. • Minimize the burden of the (1997) SL000220). The solicitation is available collection of information on those who electronically via the NCJRS Bulletin are to respond, including through the AGENCY: Office of Justice Programs, Board, which can be accessed via the use of appropriate automated, National Institute of Justice, Justice. Internet. Telnet to ncjrsbbs.ncjrs.org, or electronic, mechanical, or other ACTION: Notice of solicitation. gopher to ncjrs.org:71. For World Wide technological collection techniques or other forms of information technology, SUMMARY: Announcement of the Web access, connect to the NCJRS e.g., permitting electronic submission of availability of the National Institute of Justice Information Center at http:// responses. Justice ‘‘Solicitation for Evaluations of www.ncjrs.org. Those without Internet Agency: Mine Safety and Health the Residential Substance Abuse access can dial the NCJRS Bulletin Administration. Treatment for State Prisoners Program Board via modem: dial 301–738–8895. Title: Notification of Methane (1997).’’ Set the modem at 9600 baud, 8–N–1. Detected in Mine Atmosphere. DATES: The deadline for receipt of Jeremy Travis, OMB Number: 1219–0103 applications is close of business June Director, National Institute of Justice. (reinstatement, without change). 24, 1997. [FR Doc. 97–12906 Filed 5–15–97; 8:45 am] Frequency: On occasion. ADDRESSES: Applications should be BILLING CODE 4410±18±P Affected Public: Business or other for- mailed to the National Institute of profit. Justice, 633 Indiana Avenue, NW, Number of Respondents: 8. Washington, DC 20531. DEPARTMENT OF LABOR Estimated Time Per Respondent: 15 FOR FURTHER INFORMATION CONTACT: For minutes. a copy of the solicitation, please call Office of the Secretary Total Burden Hours: 31 hours. NCJRS 1–800–851–3420. For general Total Annualized capital/startup Submission for OMB Review; information about application costs: 0. Comment Request procedures for solicitations, please call Total annual costs (operating/ the U.S. Department of Justice Response May 13, 1997. maintaining systems or purchasing Center 1–800–421–6771. The Department of Labor (DOL) has services): $2,000. Description: This collection of SUPPLEMENTARY INFORMATION: submitted the following public information collection request (ICR) to information requires operators of Authority the Office of Management and Budget underground metal and nonmetal mines to (a) Notify the Mine Safety and Health This action is authorized under the (OMB) for review and approval in Administration when there is an Omnibus Crime Control and Safe Streets accordance with the Paperwork outburst, a blowout, or ignition of Act of 1968, sections 201–03, as Reduction Act of 1995 (Pub. L. 104–13, methane in the mine atmosphere; (b) amended, 42 U.S.C. 3721–23 (1994). 44 U.S.C. Chapter 35). A copy of this ICR, with applicable supporting test mine atmosphere for methane at Background documentation, may be obtained by least once a week, and to certify that the The National Institute of Justice is calling the Department of Labor, tests have been conducted, (c) inform soliciting proposals for evaluations of Departmental Clearance Officer, Theresa the affected persons when examinations the Residential Substance Abuse M. O’Malley ((202) 219–5096 ext. 143). disclose hazardous conditions. Treatment for State Prisoners Program. Individuals who use a Theresa M. O’Malley, Each of these state programs must: last telecommunications device for the deaf Departmental Clearance Officer. between 6 and 12 months; be provided (TTY/TDD) may call (202) 219–4720 [FR Doc. 97–12901 Filed 5–15–97; 8:45 am] in residential facilities set apart from between 1:00 p.m. and 4:00 p.m. Eastern BILLING CODE 4510±43±M general population; be directed at time, Monday through Friday. substance abuse problems of the inmate; Comments should be sent to Office of and intend to develop a number of skills Information and Regulatory Affairs, DEPARTMENT OF LABOR so as to solve substance abuse and Attn: OMB Desk Officer, Mine Safety related problems. Each State must also and Health Administration, Office of Employment and Training ensure coordination between Management and Budget, Room 10235, Administration correctional representatives and other Washington, DC 20503 ((202) 395– appropriate agencies. 7316), within 30 days from the date of General Statutory and Work-Flex It is expected that up to 14 separate this publication in the Federal Register. Waiver Request; Comment Request awards of up to $60,000 will be granted The OMB is particularly interested in ACTION: Notice. for a period of 15 months. The comments which: evaluations will be for local programs in • Evaluate whether the proposed SUMMARY: The Department of Labor, as individual states with preference given collection of information is necessary part of its continuing effort to reduce to programs not currently under for the proper performance of the paperwork and respondent burden evaluation. Some discretion is provided functions of the agency, including conducts a preclearance consultation Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27069 program to provide the general public guidance to the employment and Dated: May 12, 1997. and Federal agencies with an training community and submittal of Charles Atkinson, opportunity to comment on proposed waivers. Because these waivers were Deputy Administrator, Office of Job Training and/or continuing collections of granted under emergency procedures Programs. information in accordance with the the period covered only extended to [FR Doc. 97–12900 Filed 5–15–97; 8:45 am] Paperwork Reduction Act of 1995 June 30. This period was subsequently BILLING CODE 4510±30±M. (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This extended until September 30. To permit program helps to ensure that requested States the opportunity to continue to data can be provided in the desired submit such requests an extension of DEPARTMENT OF LABOR format, reporting burden (time and this authority is needed. financial resources) is minimized, Employment Standards Administration II. Current Actions collection instruments are clearly Wage and Hour Division; Minimum understood, and the impact of collection ETA is anticipating upwards of 600 Wages for Federal and Federally requirements on respondents can be waiver requests during the next several Assisted Construction; General Wage properly assessed. Currently, the months. Only the waiver requests from Determination Decisions Employment and Training Oregon have been approved thus far. Administration is soliciting comments The authority requested remains General wage determination decisions concerning the proposed extension of unchanged. It would permit States to of the Secretary of Labor are issued in collection of the Workforce Flexibility submit general statutory waiver request accordance with applicable law and are (Work-Flex) Partnership Demonstration covering Titles I–III of the JTPA and based on the information obtained by Program and General Statutory Waivers. sections 8–10 of Wagner Peyser. The the Department of Labor from its study A copy of the proposed information same exclusions would be retained of local wage conditions and data made collection request (ICR) can be obtained under this request. Also it would permit available from other sources. They by contacting the office listed below in submittal of work-flex applications if specify the basic hourly wage rates and the addressee section of this notice. the full contingent of six States have not fringe benefits which are determined to DATES: Writteen comments must be been approved based on the initial be prevailing for the described classes of submitted to the office listed in the round of applications. laborers and mechanics employed on addressee section below on or before Type of Review: Extension of a construction projects of a similar July 15, 1997. currently approved collection. character and in the localities specified The Department of Labor is Agency: U.S. Department of Labor/ therein. particularly interested in comments ETA. which: The determinations in these decisions • Evaluate whether the proposed Title: Workforce Flexibility (Work- of prevailing rates and fringe benefits collection of information is necessary Flex) Partnership Demonstration have been made in accordance with 29 for the proper performance of the Program. CFR Part 1, by authority of the Secretary functions of the agency, including OMB Number: 1205–0375. of Labor pursuant to the provisions of whether the information will have Affected Public: States. the Davis-Bacon Act of March 3, 1931, practical utility; Total Respondents: 56. as amended (46 Stat. 1494, as amended, • Evaluate the accuracy of the Frequency: On occasion. 40 U.S.C. 276a) and of other Federal agency’s estimate of the burden of the statutes referred to in 29 CFR Part 1, proposed collection of information, Total Responses: 10 potential. Appendix, as well as such additional including the validity of the Average Time per Response: 80. statutes as may from time to time be methodology and assumptions used; Estimated Total Burden Hours: 800. enacted containing provisions for the • Enhance the quality, utility, and Total Burden Cost (capital/startup): payment of wages determined to be clarity of the information to be -0-. prevailing by the Secretary of Labor in collected; and accordance with the Davis-Bacon Act. • Total Burden Cost (operating/ Minimize the burden of the maintaining): $2,500. The prevailing rates and fringe benefits collection of information on those who determined in these decisions shall, in are to respond, including through the Title: General Statutory Waivers. accordance with the provisions of the use of appropriate automated, OMB Number: 1205–0376. foregoing statutes, constitute the electronic, mechanical, or other Affected Public: States. minimum wages payable on Federal and technological collection techniques or Total Respondents: 56. federally assisted construction projects other forms of information technology, Frequency: On occasion. to laborers and mechanics of the e.g., permitting electronic submissions specified classes engaged on contract Total Responses: 20 potential. of responses. work of the character and in the Average Time per Response: 80. ADDRESSES: Department of Labor, localities described therein. Estimated Total Burden Hours: 1600. Employment and Training Good cause is hereby found for not Administration, James M. Aaron, 200 Total Burden Cost (capital/startup): utilizing notice and public comment Constitution Avenue, N.W., -0-. procedure thereon prior to the issuance Washington, DC 20210; telephone Total Burden Cost (operating/ of these determinations as prescribed in number (202) 219–5580, x174 (this is maintaining): $2,500. 5 U.S.C. 553 and not providing for delay not a toll free number). Comments submitted in response to in the effective date as prescribed in that SUPPLEMENTARY INFORMATION: this comment request will be section, because the necessity to issue summarized and/or included in the current construction industry wage I. Background request for Office of Management and determinations frequently and in large Based on OMB request approvals Budget approval of the information volume causes procedures to be 1205–0375 and 1205–0376, the ETA collection request; they will also impractical and contrary to the public issued TEGLs 6–96 and 7–96 to provide become a matter of public record. interest. 27070 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

General wage determination NY970002 (Feb. 14, 1997) IL970049 (Feb. 14, 1997) decisions, and modifications and NY970003 (Feb. 14, 1997) Indiana supersedes decisions thereto, contain no NY970004 (Feb. 14, 1997) IN970001 (Feb. 14, 1997) expiration dates and are effective from NY970005 (Feb. 14, 1997) IN970002 (Feb. 14, 1997) NY970006 (Feb. 14, 1997) IN970003 (Feb. 14, 1997) their date of notice in the Federal NY970007 (Feb. 14, 1997) IN970005 (Feb. 14, 1997) Register, or on the date written notice NY970008 (Feb. 14, 1997) IN970006 (Feb. 14, 1997) is received by the agency, whichever is NY970010 (Feb. 14, 1997) IN970018 (Feb. 14, 1997) earlier. These decisions are to be used NY970011 (Feb. 14, 1997) Minnesota in accordance with the provisions of 29 NY970012 (Feb. 14, 1997) MN970007 (Feb. 14, 1997) CFR Parts 1 and 5. Accordingly, the NY970013 (Feb. 14, 1997) MN970008 (Feb. 14, 1997) applicable decision, together with any NY970015 (Feb. 14, 1997) MN970015 (Feb. 14, 1997) modifications issued, must be made a NY970016 (Feb. 14, 1997) MN970061 (Feb. 14, 1997) NY970017 (Feb. 14, 1997) Ohio part of every contract for performance of NY970018 (Feb. 14, 1997) OH970002 (Feb. 14, 1997) the described work within the NY970019 (Feb. 14, 1997) OH970012 (Feb. 14, 1997) geographic area indicated as required by NY970020 (Feb. 14, 1997) OH970018 (Feb. 14, 1997) an applicable Federal prevailing wage NY970021 (Feb. 14, 1997) OH970029 (Feb. 14, 1997) law and 29 CFR Part 5. The wage rates NY970022 (Feb. 14, 1997) OH970035 (Feb. 14, 1997) and fringe benefits, notice of which is NY970025 (Feb. 14, 1997) Volume V published herein, and which are NY970026 (Feb. 14, 1997) NY970031 (Feb. 14, 1997) Iowa contained in the Government Printing IA970002 (Feb. 14, 1997) Office (GPO) document entitled NY970032 (Feb. 14, 1997) NY970033 (Feb. 14, 1997) IA970005 (Feb. 14, 1997) ‘‘General Wage Determinations Issued NY970034 (Feb. 14, 1997) Kansas Under The Davis-Bacon And Related NY970036 (Feb. 14, 1997) KS970006 (Feb. 14, 1997) Acts,’’ shall be the minimum paid by NY970037 (Feb. 14, 1997) KS970012 (Feb. 14, 1997) contractors and subcontractors to NY970038 (Feb. 14, 1997) KS970016 (Feb. 14, 1997) laborers and mechanics. NY970039 (Feb. 14, 1997) Louisiana Any person, organization, or NY970040 (Feb. 14, 1997) LA970001 (Feb. 14, 1997) governmental agency having an interest NY970041 (Feb. 14, 1997) LA970005 (Feb. 14, 1997) in the rates determined as prevailing is NY970042 (Feb. 14, 1997) Missouri NY970043 (Feb. 14, 1997) MO970001 (Feb. 14, 1997) encouraged to submit wage rate and Nebraska fringe benefit information for NY970044 (Feb. 14, 1997) NY970045 (Feb. 14, 1997) NE970001 (Feb. 14, 1997) consideration by the Department. NY970046 (Feb. 14, 1997) NE970002 (Feb. 14, 1997) Further information and self- NY970047 (Feb. 14, 1997) NE970019 (Feb. 14, 1997) explanatory forms for the purpose of NY970048 (Feb. 14, 1997) NE970057 (Feb. 14, 1997) submitting this data may be obtained by NY970049 (Feb. 14, 1997) Volume VI writing to the U.S. Department of Labor, NY970051 (Feb. 14, 1997) Colorado Employment Standards Administration, NY970076 (Feb. 14, 1997) NY970077 (Feb. 14, 1997) CO970001 (Feb. 14, 1997) Wage and Hour Division, Division of CO970006 (Feb. 14, 1997) Wage Determinations, 200 Constitution Volume II Oregon Avenue, N.W., Room S–3014, Maryland OR970001 (Feb. 14, 1997) Washington, D.C. 20210. MD970015 (Feb. 14, 1997) OR970017 (Feb. 14, 1997) South Dakota Modifications to General Wage MD970031 (Feb. 14, 1997) MD970055 (Feb. 14, 1997) SD970003 (Feb. 14, 1997) Determination Decisions Virginia SD970005 (Feb. 14, 1997) The number of decisions listed in the VA970108 (Feb. 14, 1997) Washington Government Printing Office document WA970001 (Feb. 14, 1997) Volume III WA970002 (Feb. 14, 1997) entitled ‘‘General Wage Determinations Alabama WA970003 (Feb. 14, 1997) Issued Under the Davis-Bacon and AL970004 (Feb. 14, 1997) WA970005 (Feb. 14, 1997) Related Acts’’ being modified are listed AL970006 (Feb. 14, 1997) WA970008 (Feb. 14, 1997) by Volume and State. Dates of AL970034 (Feb. 14, 1997) WA970011 (Feb. 14, 1997) publication in the Federal Register are AL970044 (Feb. 14, 1997) WA970013 (Feb. 14, 1997) in parentheses following the decisions Kentucky WA970026 (Feb. 14, 1997) being modified. KY970001 (Feb. 14, 1997) Volume VII KY970002 (Feb. 14, 1997) Volume I KY970003 (Feb. 14, 1997) California Massachusetts KY970004 (Feb. 14, 1997) CA970054 (Feb. 14, 1997) MA970001 (Feb. 14, 1997) KY970007 (Feb. 14, 1997) CA970075 (Feb. 14, 1997) MA970002 (Feb. 14, 1997) KY970025 (Feb. 14, 1997) CA970095 (Feb. 14, 1997) MA970003 (Feb. 14, 1997) KY970029 (Feb. 14, 1997) CA970105 (Feb. 14, 1997) MA970017 (Feb. 14, 1997) KY970044 (Feb. 14, 1997) General Wage Determination MA970018 (Feb. 14, 1997) KY970054 (Feb. 14, 1997) MA970019 (Feb. 14, 1997) Publication New Hampshire Volume IV General wage determinations issued NH970005 (Feb. 14, 1997) Illinois under the Davis-Bacon and related Acts, NH970007 (Feb. 14, 1997) IL970001 (Feb. 14, 1997) including those noted above, may be New Jersey IL970008 (Feb. 14, 1997) found in the Government Printing Office NJ970002 (Feb. 14, 1997) IL970009 (Feb. 14, 1997) NJ970003 (Feb. 14, 1997) IL970011 (Feb. 14, 1997) (GPO) document entitled ‘‘General Wage NJ970004 (Feb. 14, 1997) IL970012 (Feb. 14, 1997) Determinations Issued Under The Davis- NJ970007 (Feb. 14, 1997) IL970013 (Feb. 14, 1997) Bacon and Related Acts’’. This New York IL970014 (Feb. 14, 1997) publication is available at each of the 50 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27071

Regional Government Depository State Service area(s) LEGAL SERVICES CORPORATION Libraries and many of the 1,400 Government Depository Libraries across Florida ...... FL±11 Notice of Availability of 1997 the country. Guam ...... GU±1 Competitive Grant Funds for Service The general wage determinations Illinois ...... IL±1 Area PA±3 for Delaware County, issued under the Davis-Bacon and Iowa ...... IA±1,IA±2,MIA Pennsylvania related Acts are available electronically Louisiana ...... LA±1 AGENCY: Legal Services Corporation. by subscription to the FedWorld Massachusetts ...... MA±4,MA±5,MA± Bulletin Board System of the National 10,MMA ACTION: Correction. Mississippi ...... MS±4,NMS±1 Technical Information Service (NTIS) of SUMMARY: In a notice published on April the U.S. Department of Commerce at Missouri ...... MO±1 Nebraska ...... NE±3,MNE 14, 1997 (62 FR 18151), the Legal (703) 487–4630. Services Corporation announced the Hard-copy subscriptions may be New Jersey ...... NJ±1,NJ±2,NJ±3,NJ± 4,NJ±5,NJ±6,NJ± reopening of competition for 1997 and purchased from: Superintendent of 7,NJ±8,NJ±9,NJ± the solicitation of proposals for the Documents, U.S. Government Printing 10,NJ±11,NJ± provision of civil legal services for Office, Washington, DC 20402, (202) 12,NJ±13,NJ± Delaware County, Pennsylvania. The 512–1800. 14,MNJ intended grant amount for the When ordering hard-copy New York ...... NY±1,NY±3,NY± remainder of 1997 was erroneously subscription(s), be sure to specify the 4,NY±5,NY±6,NY± stated as $96,034. The Corporation State(s) of interest, since subscriptions 7,NY±8,NY±9,NY± tentatively plans to award a grant in the 10,NY±13,NY± may be ordered for any or all of the amount of $144,047. seven separate volumes, arranged by 14,NY±15,NY± FOR FURTHER INFORMATION CONTACT: State. Subscriptions include an annual 16,NY±17,NY± 18,MNY Carolyn Naidu , Grants Analyst, at (202) edition (issued in January or February) North Carolina ...... NC±1,NC±2,NC± 336–8907. which includes all current general wage 3,NC±4,NNC± Date Issued: May 12 , 1997. determinations for the States covered by 1,MNC each volume. Throughout the remainder North Dakota ...... ND±1,ND±2,NND± Stephanie Rorie, of the year, regular weekly updates are 1,NND±2,MND Managing Program Analyst, Office of Program distributed to subscribers. Ohio ...... OH±4,OH±9,OH± Operations. Signed at Washington, DC this 9th day of 10,OH±16 [FR Doc. 97–12809 Filed 5–15–97; 8:45 am] May 1997. Oklahoma ...... NOK±1 BILLING CODE 7050±01±P Carl Poleskey, Oregon ...... OR±1,OR±2,OR± 3,OR±4,NOR± Chief, Branch of Construction Wage 1,MOR Determinations. NATIONAL AERONAUTICS AND Pennsylvania ...... PA±1,PA±2,PA± SPACE ADMINISTRATION [FR Doc. 97–12624 Filed 5–15–97; 8:45 am] 3,PA±4,PA±5,PA± BILLING CODE 4510±27±M 6,PA±7,PA±8,PA± [Notice 97±058] 9,PA±10,PA± 11,PA±12,PA± Government-Owned Inventions, LEGAL SERVICES CORPORATION 13,PA±14,PA± Available for Licensing 15,PA±16,PA± AGENCY: National Aeronautics and Notice of Availability of 1998 17,PA±18,PA± 19,MPA Space Administration. Competitive Grant Funds Puerto Rico ...... PR±1,PR±2,MPR ACTION: Notice of availability of AGENCY: Legal Services Corporation. South Carolina ...... SC±1,SC±6,MSC inventions for licensing. South Dakota ...... SD±1,SD±2,SD± ACTION: Correction. 3,NSD±1,MSD SUMMARY: The inventions listed below SUMMARY: In a notice published on April Tennessee ...... MTN are assigned to the National Aeronautics 24, 1997 (62 FR 20038), the Legal Texas ...... TX±9 and Space Administration, have been Services Corporation announced the Utah ...... UT±1 filed in the United States Patent and availability of competitive grant funds Virginia ...... VA±1,VA±2,VA± Trademark Office, and are available for to solicit grant proposals from interested 3,VA±4,VA±5,VA± licensing. 6,VA±7,VA±8,VA± Copies of patent applications cited are parties who are qualified to provide 9,VA±10,VA± effective, efficient and high quality civil available from the Office of Patent 11,VA±12,VA± Counsel, Lewis Research Center. Claims legal services to eligible clients for 13,MVA are deleted from the patent applications calendar year 1998. Service area AL–3 Virgin Islands ...... VI±1 in Alabama should have also been Wyoming ...... WY±4,NWY±1,MWY to avoid premature disclosure. included. DATES: May 16, 1997. A complete revised listing of service Date Issued: May 12, 1997. FOR FURTHER INFORMATION CONTACT: Kent areas for competitive grant funds for Stephanie Rorie, N. Stone, Patent Attorney, Lewis calendar year 1998 follows: Research Center, Mail Code 500–118, Managing Program Analyst, Office of Program Operations. Cleveland, OH 44135; telephone (216) State Service area(s) 433–8855, fax (216) 433–6790. [FR Doc. 97–12808 Filed 5–15–97; 8:45 am] NASA Case No. LEW–15,793–2: Method Arizona ...... AZ±1, NAZ±1 BILLING CODE 7050±01±P Arkansas ...... AR±3 and Apparatus for Emissivity District of Columbia ... DC±1 Independent Self-Calibrating of a California ...... CA±9, CA±25 Multiwavelength Pyrometer; Colorado ...... CO±2,CO±3,CO± NASA Case No. LEW–16,195–1: 5,NCO±1,MCO PS300—Self Lubricating Readily 27072 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Polished High Temperature —Performance metrics subsidiary of Dominion Resources Composite, —International partner utilization plans Incorporated (DRI), of Glen Allen, NASA Case No. LEW–16,342–1: It is imperative that the meeting be Virginia 23060, has applied for an Elemental Metals or Oxides held on these dates to accommodate the exclusive license to practice the Distributed on a Carbon Substrate or scheduling priorities of the key inventions described and claimed in Self-Supported and the participants. Visitors will be requested NASA Case Nos. LAR 15348–1, entitled Manufacturing Process Using to sign a visitor’s register. ‘‘THIN-LAYER COMPOSITE- Graphite Oxide as Template; Dated: May 7, 1997. UNIMORPH FERROELECTRIC DRIVER NASA Case No. LEW–16,348–1: A AND SENSOR, ‘THUNDER’ ’’; LAR Leslie M. Nolan, Dynamic Pressure Probe for Static 15348–2, entitled THIN-LAYER Pressure Measurements in a Gaseous Advisory Committee Management Officer, COMPOSITE-UNIMORPH Flow Fields. National Aeronautics and Space Administration. FERROELECTRIC DRIVER AND SENSOR, ‘THUNDER’ ’’ and LAR Dated: May 2, 1997. [FR Doc. 97–12941 Filed 5–15–97; 8:45 am] 15138–2 ‘‘A HIGH DISPLACEMENT Edward A. Frankle, BILLING CODE 7510±01±M General Counsel. SOLID STATE PIEZOELECTRIC LOUDSPEAKER’’ for which United [FR Doc. 97–12940 Filed 5–15–97; 8:45 am] States Patent Applications were filed by BILLING CODE 7510±01±M NATIONAL AERONAUTICS AND SPACE ADMINISTRATION the United States of America as represented by the Administrator of the [Notice 97±060] NATIONAL AERONAUTICS AND National Aeronautics and Space SPACE ADMINISTRATION Administration. Written objections to Notice of Prospective Copyright the prospective grant of a license should [Notice 97±059] License be sent to NASA Langley Research Center. NASA Advisory Council, Life and AGENCY: National Aeronautics and DATES: Microgravity Sciences and Space Administration. Responses to this notice must be Applications Advisory Committee, ACTION: Notice of Prospective Copyright received by July 15, 1997. Space Station Utilization Advisory License. FOR FURTHER INFORMATION CONTACT: Subcommittee; Meeting Ms. Robin W. Edwards, Patent Attorney, SUMMARY: NASA hereby gives notice NASA Langley Research Center, Mail AGENCY: National Aeronautics and that Command and Control Stop 212, Hampton, VA 23681–0001, Space Administration. Technologies, Inc., Titusville, Florida, telephone (757) 864–9190. ACTION: Notice of meeting. has applied for an exclusive copyright license for the Computer Software Dated: May 6, 1997. SUMMARY: In accordance with the entitled ‘‘Control Monitor Unit (CMU),’’ Edward A. Frankle, Federal Advisory Committee Act. Public KSC–11830, which is assigned to the General Counsel. Law 92–463, as amended, the National United States of America as represented [FR Doc. 97–12943 Filed 5–15–97; 8:45 am] Aeronautics and Space Administration by the Administrator of the National BILLING CODE 7510±01±M announces a forthcoming meeting of the Aeronautics and Space Administration. NASA Advisory Council, Life and Written objections to the prospective Microgravity Sciences and Applications grant of a license to Command and NATIONAL CREDIT UNION Advisory Committee, Space Station Control Technologies, Inc. should be ADMINISTRATION Utilization Advisory Subcommittee. sent to Beth Vrioni, John F. Kennedy DATES: June 23, 1997, 8 a.m. to 5 p.m.; Space Center, Mail Code DE–TPO, Notice of Meetings June 24, 1997, 8 a.m. to 5 p.m.; June 25, Kennedy Space Center, FL 32899. Time and Date: 10:00 a.m., Thursday, 1997, 8 a.m. to 5 p.m.; June 26, 1997, DATES: Responses to this notice must be May 22, 1997. 8 a.m. to 5 p.m.; June 27, 1997, 8 a.m. received on or before July 15, 1997. For Place: Board Room, 7th Floor, Room to 11:30 a.m. further information contact Beth Vrioni 7047, 1775 Duke Street, Alexandria, VA ADDRESSES: New England Center, 15 at (407) 867–2544. 22314–3428. Strafford Avenue, Durham, NH. Dated: May 6, 1997. Status: Open. FOR FURTHER INFORMATION CONTACT: Edward A. Frankle, Board Briefing: Dr. Edmond M. Reeves, Code US, General Counsel. 1. Insurance Fund Report. National Aeronautics and Space [FR Doc. 97–12942 Filed 5–15–97; 8:45 am] Matters to be Considered: Administration, Washington, DC 20546, BILLING CODE 7510±01±M 1. Approval of Minutes of Previous 202/358–2560. Open Meeting. SUPPLEMENTARY INFORMATION: The 2. Requests from Federal Credit meeting will be open to the public up NATIONAL AERONAUTICS AND Unions to Convert to a Community to the seating capacity of the room. SPACE ADMINISTRATION Charter. Advance notice of attendance to the 3. Request from a Corporate Federal Executive Secretary is requested. The [Notice 97±061] Credit Union for a Field of Membership agenda for the meeting will include the Notice of Prospective Patent License amendment. following topics: 4. Request from a Corporate Credit —Station program update AGENCY: National Aeronautics and Union to Merge. —Research utilization plans Space Administration. Recess: 11:15 a.m. —Microgravity capabilities and ACTION: Notice of prospective patent Time and Date: 11:30 a.m., Thursday, requirements license. May 22, 1997. —External environment Place: Board Room, 7th Floor, Room —Telescience requirements and SUMMARY: NASA hereby gives notice 7047, 1775 Duke Street, Alexandria, VA communications capabilities that Virginia Power, the primary 22314–3428. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27073

Status: Closed. NATIONAL SCIENCE FOUNDATION Agenda: To review and evaluate proposals for the Chemistry Research Instrumentation Matters to be Considered: Special Emphasis Panel in Biological and Facilities (CRIF) Program as part of the 1. Approval of Minutes of Previous Sciences; Notice of Meeting selection process for awards. Closed meeting. Reason for Closing: The proposals being In accordance with the Federal reviewed include information of a 2. Administrative Action under Advisory Committee Act (Pub. L. 92– proprietary or confidential nature, including Section 206 of the Federal Credit Union 463, as amended), the National Science technical information, financial data such as Act. Closed pursuant to exemptions (8), Foundation announces the following salaries, and personal information (9)(A)(ii), and (9)(B). meeting: concerning individuals associated with the proposals. These matters are exempt under 5 3. Personnel Action(s). Closed Name: Special Emphasis Panel in U.S.C. 552b(c) (4) and (6) of the Government pursuant to exemptions (2) and (6). Biological Sciences (#1754). in the Sunshine Act. Date & Time: June 12, 1997 at 8:30 a.m. to Dated: May 12, 1997. FOR FURTHER INFORMATION CONTACT: 5:00 p.m.; June 13, 1997 at 8:30 a.m. to 3:00 Becky Baker, Secretary of the Board, p.m. M. Rebecca Winkler, Telephone 703–518–6304. Location: Room 390, National Science Committee Management Officer. Becky Baker, Foundation, 4201 Wilson Blvd., Arlington, [FR Doc. 97–12811 Filed 5–15–97; 8:45 am] VA. BILLING CODE 7555±01±M Secretary of the Board. Type of Meeting: Closed. [FR Doc. 97–13069 Filed 5–14–97; 2:14 pm] Contact Person: Dr. James T. Callahan, BILLING CODE 7535±01±M Program Director, Division of Environmental NATIONAL SCIENCE FOUNDATION Biology, National Science Foundation, 4201 Wilson Blvd., Room 615, Arlington, Virginia Special Emphasis Panel in Civil and 22230 (703) 306–1469. Purpose of Meeting: To provide advice and Mechanical Systems; Notice of NATIONAL SCIENCE FOUNDATION recommendations concerning research Meeting proposals submitted to NSF for financial Special Emphasis Panel in Advanced support. In accordance with the Federal Scientific Computing; Notice of Agenda: To review and evaluate research Advisory Committee Act (Pub. L. 92– Meeting proposals submitted to the Equipment and 463, as amended), the National Science Facilities for Research at Biological Field Foundation announces the following In accordance with the Federal Stations and Marine Laboratories Program as meeting: part of the selection process for awards. Advisory Committee Act (Pub. L. 92– Name: Special Emphasis Panel in Civil and Reasons for Closing: The proposals being Mechanical Systems (1205). 463, as amended), the National Science reviewed include information of a Foundation announces the following proprietary or confidential nature, including Date & Time: June 9 and June 10, 1997; meeting: technical information; financial data, such as 8:30 a.m. to 5:00 p.m. salaries; and personal information Place: NSF, 4201 Wilson Boulevard, Name: Special Emphasis Panel in concerning individuals associated with the Rooms 320 & 330, Arlington, Virginia. Advanced Scientific Computing (#1185). proposals. These matters are exempt under 5 Contact Person: Drs. Craig Hartley and Sunil Saigal, Program Directors, Mechanics Date and Time: June 6, 1997, 8:30 a.m. to U.S.C. 552b(c) (4) and (6) of the Government in the Sunshine Act. and Materials Programs, Division of Civil and 5:00 p.m. Mechanical Systems, Room 545, NSF, 4201 Place: National Science Foundation, 4201 Dated: May 12, 1997. Wilson Blvd., Arlington, VA 22230 703/306– Wilson Boulevard, Suite 1120, Arlington, VA M. Rebecca Winkler, 1361, x 5078 and x 5069. 22230. Committee Management Officer. Purpose of Meeting: To provide advice and Type of Meeting: Closed. recommendations concerning proposals [FR Doc. 97–12820 Filed 5–15–97; 8:45 am] Contact Person: Dr. John Van Rosendale, submitted to NSF for financial support. BILLING CODE 7555±01±M Program Director, New Technologies Agenda: To review and evaluate Program, Suite 1122, National Science Mechanics & Materials proposals as part of Foundation, 4201 Wilson Boulevard, the selection process for awards. NATIONAL SCIENCE FOUNDATION Reason for Closing: The proposals being Arlington, VA 22230, (703) 306-1962. reviewed include information of a Purpose of Meeting: To provide Special Emphasis Panel in Chemistry; proprietary or confidential nature, including recommendations and advice concerning Notice of Meeting technical information; financial data, such as proposals submitted to NSF for financial salaries; and personal information support. In accordance with the Federal concerning individuals associated with the Agenda: Panel review of the New Advisory Committee Act (Pub. L. 92– proposals. These matters are exempt under 5 Technologies Program proposals as part of 463, as amended), the National Science U.S.C. 552b(c) (4) and (6) of the Government the selection process for awards. Foundation announces the following Sunshine Act. Reason for Closing: The proposals being meeting: Dated: May 12, 1997. reviewed include information of a Name: Special Emphasis Panel in M. Rebecca Winkler, proprietary or confidential nature, including Chemistry (ι1191). Committee Management Officer. technical information; financial data, such as Date and Time: June 2, 1997. [FR Doc. 97–12818 Filed 5–15–97; 8:45 am] salaries; and personal information Place: Room 1060, NSF, 4201 Wilson BILLING CODE 7555±01±M concerning individuals associated with the Boulevard, Arlington, VA 22230. proposals. These matters are exempt under 5 Type of Meeting: Closed. Contact Person: Dr. Joseph Reed, Program U.S.C. 552b(c), (4) and (6) of the Government NATIONAL SCIENCE FOUNDATION in the Sunshine Act. Director, Chemical Instrumentation Program, Chemistry Division, Room 1055, National Dated: May 12, 1997. Science Foundation, 4201 Wilson Boulevard, Special Emphasis Panel in Civil and M. Rebecca Winkler, Arlington, VA 22230, Telephone: (703) 306– Mechanical Systems; Notice of Committee Management Officer. 1849. Meeting Purpose of Meeting: To provide advice and [FR Doc. 97–12816 Filed 5–15–97; 8:45 am] recommendations concerning proposals In accordance with the Federal BILLING CODE 7555±01±M submitted to NSF for financial support. Advisory Committee Act Public Law 27074 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

92–463, as amended), the National Type of Proposal: Physical Foundations of NATIONAL SCIENCE FOUNDATION Science Foundation announces the Enabling Technologies (PFET). following meeting: Times: 8:30 a.m. to 5:00 p.m. each day. Special Emphasis Panel in Information, Place: Rooms 360 and 320, National Robotics and Intelligent Systems; Name: Special Emphasis Panel in Civil and Science Foundation, 4201 Wilson Blvd., Notice of Meetings Mechanical Systems (1205). Arlington, VA. Date & Time: June 12 and June 13, 1997; Type of Meetings: Closed. This notice is being published in 8:30 a.m. to 5:00 p.m. Purpose of Meetings: To provide advice accord with the Federal Advisory Place: NSF, 4201 Wilson Boulevard, Room and recommendations concerning proposals Committee Act (Pub. L. 92–463, as 530, Arlington, Virginia. submitted to NSF for financial support. Contact Person: Dr. Devendra P. Garg, Agenda: To review and evaluate proposals amended). During the period June 1 Program Director, Dynamic Systems & submitted to the Division as part of the through June 30, 1997, the Special Control Program, Division of Civil and selection process for awards. Emphasis Panel will be holding panel Mechanical Systems, Room 545, NSF, 4201 Reason for Closing: The proposals being meetings to review and evaluate Wilson Blvd., Arlington, VA 22230 703/306– reviewed include information of a research proposals. The dates, contact 1361, x 5068. proprietary or confidential nature, including person, and types of proposals are as Purpose of Meeting: To provide advice and technical information; financial data, such as follows: recommendations concerning proposals salaries, and personal information submitted to NSF for financial support. concerning individuals associated with the Special Emphasis Panel in Information, Agenda: To review and evaluate Dynamic proposals. These matters are exempt under 5 Robotics and Intelligent Systems (1200). Systems & Control proposals as part of the USC 552b(c) (4) and (6) of the Government 1. Date: June 2–3, 1997. selection process for awards. in the Sunshine Act. Contact: Dr. Maria Zemankova, Deputy Division Director, IRIS, Room 1115, 703– Reason for Closing: The proposals being Dated: May 12, 1997. reviewed include information of a 306–1929. proprietary or confidential nature, including M. Rebecca Winkler, Type of Proposal: Robotics and Machine technical information; financial data, such as Committee Management Officer. Intelligence Program Computer Vision. salaries; and personal information [FR Doc. 97–12817 Filed 5–15–97; 8:45 am] 2. Date: June 9–10, 1997. Contact: Dr. Maria Zemankova, Deputy concerning individuals associated with the BILLING CODE 7555±01±M proposals. These matters are exempt under 5 Division Director, IRIS, Room 1115, 703– U.S.C. 552b(c) (4) and (6) of the Government 306–1929. Type of Proposal: Robotics and Machine Sunshine Act. NATIONAL SCIENCE FOUNDATION Dated: May 12, 1997. Intelligence Program. Times: 8:30 a.m. to 5:00 p.m. each day. M. Rebecca Winkler, Special Emphasis Panel in Place: Room 1150, National Science Committee Management Officer. Geosciences: Notice of Meeting Foundation, 4201 Wilson Blvd., Arlington, VA. [FR Doc. 97–12819 Filed 5–15–97; 8:45 am] In accordance with the Federal BILLING CODE 7555±01±M Type of Meetings: Closed. Advisory Committee Act (Pub. L. 92– Purpose of Meetings: To provide advice 463, as amended), the National Science and recommendations concerning proposals NATIONAL SCIENCE FOUNDATION Foundation announces the following submitted to NSF for financial support. meeting. Agenda: to review and evaluate proposals submitted to the Division as part of the Special Emphasis Panel in Electrical Name: Special Emphasis Panel in the selection process for awards. and Communications Systems; Notice Geosciences (1756). Reason for Closing: The proposals being of Meetings Date and Time: June 4–5, 1997, 9 a.m. to reviewed include information of a 5 p.m. proprietary or confidential nature, including This notice is being published in Place: National Science Foundation, 4201 technical information; financial data, such as accord with the Federal Advisory Wilson Blvd., Room 770, Arlington, VA salaries, and personal information Committee Act (Pub. L. 92–463, as 22230. concerning individuals associated with the amended). During the period June 1 Type of Meeting: Closed. proposals. These matters are exempt under 5 through June 30, 1997, the Special Contact Person: Dr. Stephan P. Nelson, U.S.C. 552b(c) (4) and (6) of the Government Emphasis Panel will be holding panel Program Director for the Mesoscale Dynamic in the Sunshine Act. Meteorology Program; Division of Dated: May 12, 1997. meetings to review and evaluate Atmospheric Sciences; Room 775; 4201 research proposals. The dates, contact Wilson Blvd., Arlington, VA 22230; M. Rebecca Winkler, person, and types of proposals are as telephone number (703) 306–1526. Committee Management Officer. follows: Purpose of Meeting: To provide advice and [FR Doc. 97–12812 Filed 5–15–97; 8:45 am] Special Emphasis Panel in Electrical and recommendations concerning proposals BILLING CODE 7555±01±M Communications Systems (1196). submitted to NSF for financial support. 1. Date: June 6, 1997. Agenda: To review and evaluate the U.S. Contact: Dr. Virginia Ayres, Program Weather Research Program (USWRP) NATIONAL SCIENCE FOUNDATION Director, Physical Foundations of Enabling proposals, as part of the selection process for Technologies (PFET), Division of Electrical awards. Special Emphasis Panel in Materials Reason for Closing: The proposals being and Communications Systems, National Research; Notice of Meeting Science Foundation, 4201 Wilson Blvd., reviewed include information of a Room 675, Arlington, VA 22230. Telephone: proprietary or confidential nature, including In accordance with the Federal (703) 306–1339. technical information; financial data; and Advisory Committee Act (Pub. L. 92– Type of Proposal: Physical Foundations of personal information concerning individuals 463 as amended), the National Science associated with the proposals. These matters Enabling Technologies (PFET). Foundation announces the following 2. Date: June 11, 1997. are exempted under 5 U.S.C. 552b(c), (4) and Contact: Dr. Rajinder Khosla, Program (6) of the Government Sunshine Act. meetings: Director, Physical Foundations of Enabling Dated: May 12, 1997. Name: Special Emphasis Panel in Materials # Technologies (PFET), Division of Electrical M. Rebecca Winkler, Research 1203. and Communications Systems, National Dates and Times: June 4, 1997; 7:30 p.m.– Committee Management Office. Science Foundation, 4201 Wilson Blvd., 11:00 p.m.; June 5, 1997; 8:00 a.m.–5:00 p.m.; Room 675, Arlington, VA 22230. Telephone: [FR Doc. 97–12814 Filed 5–15–97; 8:45 am] June 6, 1997; 8:00 a.m.–5:00 p.m. (703) 306–1339. BILLING CODE 7555±01±M Place: Cornell University, Ithaca, NY. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27075

Type of Meeting: Closed. Dated: May 12, 1997. 4. How can the burden of the Contact Person: Dr. Lorretta J. Inglehart, M. Rebecca Winkler, information collection be minimized, Coordinating Program Director, National Committee Management Officer. including the use of automated Facilities and Instrumentation, Division of [FR Doc. 97–12813 Filed 5–15–97; 8:45 am] collection techniques or other forms of Materials Research, Room 1065, National BILLING CODE 7555±01±M information technology? Science Foundation, 4201 Wilson Boulevard, A copy of the draft supporting Arlington, VA 22230, Telephone (703) 306– statement may be viewed free of charge 1817. at the NRC Public Document Room, Purpose of Meeting: To provide advice and NUCLEAR REGULATORY 2120 L Street NW, (lower level), recommendations concerning the proposal COMMISSION submitted to NSF for financial support. Washington, DC. Members of the public Agenda: To review and evaluate a proposal Agency Information Collection who are in the Washington, DC, area can and provide advice and recommendations as Activities: Proposed Collection; access this document via modem on the part of the review process for proposal Comment Request Public Document Room Bulletin Board submitted to the National Facilities and (NRC’s Advanced Copy Document AGENCY: Instrumentation Program. U. S. Nuclear Regulatory Library), NRC subsystem at FedWorld, Reason for Closing: The activity being Commission (NRC). 703–321–3339. Members of the public evaluated may include information of a ACTION: Notice of pending NRC action to who are located outside of the proprietary or confidential nature, including submit an information collection Washington, DC, area can dial technical information; financial data, such as request to OMB and solicitation of FedWorld, 1–800–303–9672, or use the salaries and personal information concerning public comment. FedWorld Internet address: individuals associated with the proposals. SUMMARY: The NRC is preparing a fedworld.gov (Telnet). The document These matters are exempt under 5 U.S.C. will be available on the bulletin board 552b (c) (4) and (6) of the Government in the submittal to OMB for review of continued approval of information for 30 days after the signature date of Sunshine Act. this notice. If assistance is needed in Dated: May 12, 1997. collections under the provisions of the Paperwork Reduction Act of 1995 (44 accessing the document, please contact M. Rebecca Winkler, U.S.C. Chapter 35). the FedWorld help desk at 703–487– Committee Management Officer. Information pertaining to the 4608. Additional assistance in locating [FR Doc. 97–12815 Filed 5–15–97; 8:45 am] requirement to be submitted: the document is available from the NRC BILLING CODE 7555±01±M 1. The title of the information Public Document Room, nationally at collection: NRC Form 790, 1–800–397–4209, or within the ‘‘Classification Record.’’ Washington, DC, area at 202–634–3273. NATIONAL SCIENCE FOUNDATION 2. Current OMB approval number: Comments and questions about the 3150–0052. information collection requirements Special Emphasis Panel in Physics; 3. How often the collection is may be directed to the NRC Clearance Notice of Meeting required: On Occasion. Officer, Brenda Jo Shelton, U.S. Nuclear 4. Who is required or asked to report: Regulatory Commission, T–6 F33, In accordance with the Federal NRC employees, NRC contractors, NRC Washington, DC, 20555–0001, or by Advisory Committee Act (Pub. L. 92– licensees and others who classify and telephone at (301) 415–7233, or by 463, as amended), the National Science declassify NRC information. Internet electronic mail at Foundation announces the following 5. The number of annual respondents: [email protected]. 175. meeting. Dated at Rockville, Maryland, this 12th day 6. The number of hours needed Name: Special Emphasis Panel in Physics of May, 1997. annually to complete the requirement or (1208). For the Nuclear Regulatory Commission. request: 147. Date and Time: June 2–5, 1997 from 8:00 Arnold E. Levin, am to 5:00 pm. 7. Abstract: The NRC Form 790 is being revised to add three additional Acting Designated Senior Official for Place: Room 375, NSF 4201 Wilson Blvd., Information Resources Management. Arlington, VA. fields and revise several existing fields [FR Doc. 97–12875 Filed 5–15–97; 8:45 am] Type of Meeting: Closed. for easier completion. In addition, an Contact Person: Dr. Barry Schneider, electronic reporting format is being BILLING CODE 7590±01±P Program Director for Atomic, Molecular and made available for those wishing to use Optical Plasma Physics, Division of Physics, it. Completion of the NRC Form 790 is Room 1015, National Science Foundation, a mandatory requirement for NUCLEAR REGULATORY 4201 Wilson Blvd., Arlington, VA 22230. contractors, license applicants, COMMISSION Telephone: (703) 306–1890. certificate holders, and others who Agency Information Collection Purpose of Meeting: To provide advice and classify and declassify NRC information recommendations concerning proposals Activities: Submission for OMB in accordance with Executive Order Review; Comment Request submitted to NSF for financial support. 12958, ‘‘Classified National Security Agenda: To review and evaluate proposals Information,’’ the Atomic Energy Act, AGENCY: U. S. Nuclear Regulatory for the NSF/DOE Partnership in Basic Plasma Commission (NRC). Science and Engineering as part of the and implementing directives. selection process for award. Submit, by July 15, 1997, comments ACTION: Notice of the OMB review of Reason for Closing: The proposals being that address the following questions: information collection and solicitation reviewed include information of a 1. Is the proposed collection of of public comment. proprietary or confidential nature, including information necessary for the NRC to technical information; financial data, such as properly perform its functions? Does the SUMMARY: The NRC has recently salaries, and personal information information have practical utility? submitted to OMB for review the concerning individuals associated with the 2. Is the burden estimate accurate? following proposal for the collection of proposals. These matters are exempt under 3. Is there a way to enhance the information under the provisions of the 5 U.S.C. 552b(c), (4) and (6) of the quality, utility, and clarity of the Paperwork Reduction Act of 1995 (44 Government in the Sunshine Act. information to be collected? U.S.C. Chapter 35). The NRC hereby 27076 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices informs potential respondents that an bulletin board for 30 days after the For further details with respect to this agency may not conduct or sponsor, and signature date of this notice. If action, see the application for that a person is not required to respond assistance is needed in accessing the amendment dated January 24, 1997, as to, a collection of information unless it document, please contact the FedWorld supplemented on February 13 and 27, displays a currently valid OMB control help desk at 703–487–4608. Additional 1997, and the licensee’s letter dated number. assistance in locating the document is April 9, 1997, which withdrew the 1. Type of submission, new, revision, available from the NRC Public application for license amendment. The extension: Revision Document Room, nationally at 1–800– above documents are available for 2. The title of the information 397–4209, or within the Washington, public inspection at the Commission’s collection: Application/Permit for Use D.C. Area at 202–634–3273. Public Document Room, the Gelman of the Two White Flint (TWFN) Comments and questions should be Building, 2120 L Street, NW., Auditorium directed to the OMB reviewer by June Washington, DC, and at the local public 3. The form number if applicable: NRC 16, 1997: Edward Michlovich, Office of document room located at the Plymouth Form 590 Information and Regulatory Affairs Public Library, 11 North Street, 4. How often the collection is required: (3150–0181), NEOB–10202, Office of Plymouth, Massachusetts 02360. Each time public use of the Management and Budget, Washington, Dated at Rockville, Maryland, this 9th day auditorium is requested. DC 20503. of May 1997. 5. Who will be required or asked to Comments can also be submitted by For the Nuclear Regulatory Commission. report: Member of the public telephone at (202) 395–3084. Alan B. Wang, requesting use of the NRC The NRC Clearance Officer is Brenda Project Manager, Project Directorate I–3, Auditorium. Jo. Shelton, (301) 415–7233. Division of Reactor Projects—I/II. 6. An estimate of the number of annual Dated at Rockville, Maryland, this 8th day [FR Doc. 97–12876 Filed 5–15–97; 8:45 am] responses: 5 of May, 1997. BILLING CODE 7590±01±P 7. The estimate of the number of annual For the Nuclear Regulatory Commission. respondents: 5 Arnold E. Levin, 8. An estimate of the total number of NUCLEAR REGULATORY Acting Designated Senior Official for COMMISSION hours needed annually to complete Information Resources Management. the requirement or request: 1.25 hours [FR Doc. 97–12873 Filed 5–15–97; 8:45 am] [Docket No. 40±8903] (15 minutes per request). BILLING CODE 7590±01±P 9. An indication of whether Section Homestake Mining Company 3507(d). Public Law 104–13 applies: N/A. AGENCY: Nuclear Regulatory NUCLEAR REGULATORY Commission. 10. Abstract: In accordance with the COMMISSION Public Buildings Act of 1959, an ACTION: Amendment of Source Material agreement was reached between the [Docket No. 50±293] License SUA–1471 to change Maryland-National Capital Park and reclamation milestone dates. Planning Commission (MPPC), the Boston Edison Company; Notice of Withdrawal of Application for SUMMARY: Notice is hereby given that General Services Administration the U.S. Nuclear Regulatory (GSA) and the Nuclear Regulatory Amendment to Facility Operating License Commission has amended Homestake Commission, the NRC auditorium will Mining Company’s (HMC’s) Source be made available for public use. The U.S. Nuclear Regulatory Material License for the Grants Mill site Public users of the auditorium will be Commission (the Commission) has in New Mexico to change reclamation required to complete NRC Form 590, granted the request of Boston Edison milestone dates. This amendment was Application/Permit for Use of Two Company (licensee) to withdraw its requested by HMC letter dated White Flint North (TWFN) January 24, 1997, application, as December 18, 1996, and its receipt by Auditorium. The information is supplemented on February 13 and 27, NRC was noticed in the Federal needed to allow for administrative 1997, for proposed amendment to Register on January 22, 1997. and security review, scheduling, and Facility Operating License No. DPR–35 The license amendment modifies to make a determination that there are for the Pilgrim Nuclear Power Station, License Condition 36 to change the no anticipated problems with the located in Plymouth County, completion dates for site reclamation requester prior to utilization of the Massachusetts. milestones. The new dates approved by facility. The proposed amendment would the NRC extend completion of A copy of the submittal may be have revised the facility Updated Final placement of final radon barrier and viewed free of charge at the NRC Public Safety Analysis Report (UFSAR) placement of the final erosion Document Room, 2120 L Street, NW, pertaining to Reactor Building Response protection on the Large Tailings Pile (Lower Level), Washington, DC. Spectra. The application and (LTP) and the Small Tailings Pile (STP). Members of the public who are in the supplements requested a revision to the HMC justifies the delays due to Washington, DC, area can access the UFSAR to allow an alternative method incomplete (less than 90%) settlement submittal via modem on the Public of deriving seismic inputs for the of the LTP and the existence of Document Room Bulletin Board (NRC’s analysis of piping systems specified in groundwater corrective action Advanced Copy Document Library), the January 24, 1997, letter. evaporation ponds on the STP. Based on NRC subsystem at FedWorld, 703–321– The Commission had previously the review of HMC’s submittal, which 3339. Members of the public who are issued a Notice of Consideration of indicates reclamation will be completed located outside of the Washington, DC, Issuance of Amendment published in as expeditiously as practicable, and the area can dial FedWorld, 1–800–303– the Federal Register on March 12, 1997 fact that the added risk to the public 9672, or use the FedWorld Internet (62 FR 11480). However, by letter dated health and safety is not significant, the address: fedworld.gov(Telnet). The April 9, 1997, the licensee withdrew the NRC staff considers HMC’s request document will be available on the proposed change. acceptable. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27077

An environmental assessment is not directed all Federal agencies to ‘‘hire allowable under OMB’s cost principles required since this action is people off the welfare rolls into circulars. categorically excluded under 10 CFR available job positions in the 2. Question—Are supportive services, 51.22(c)(11), and an environmental Government’’ and to submit proposed such as transportation and day care report from the licensee is not required plans for ‘‘on-the-job training and/or services, for hired welfare recipients by 10 CFR 51.60(b)(2). mentoring programs.’’ allowable costs under Federal assistance SUPPLEMENTARY INFORMATION: HMC’s To supplement this initiative, Federal programs? license, including an amended License agencies were asked to encourage their Answer—Yes, to the extent that an Condition 36, and the NRC staff’s grantees and their subrecipients to hire organization’s internal and established technical evaluation of the amendment welfare recipients and to provide policy permits charging of such costs in request, are being made available for additional needed training and/or a consistent manner. These costs are public inspection at the NRC’s Public mentoring. This Notice, which the usually classified as fringe benefit costs Document Room at 2120 L Street, NW Office of Management and Budget and, like salaries and wages, are (Lower Level), Washington, DC 20555. (OMB) developed with the major distributed to all of the organization’s activities. In any case, fringe benefits in FOR FURTHER INFORMATION CONTACT: Federal grantmaking agencies, provides the form of transit benefits are an Kenneth R. Hooks, Uranium Recovery nonbinding questions and answers to assist the Federal grantmaking agencies, allowable cost under Federal grants. Branch, Division of Waste Management, Section 132 of the Internal Revenue U.S. Nuclear Regulatory Commission, grantees, and subrecipients in responding to the President’s Welfare- Code of 1986 allows up to $65 per Washington, D.C. 20555. Telephone month to be provided to employees tax (301) 415–7777. to-Work Initiative. The Federal Government recognizes and appreciates free in the form of a ‘‘transit pass,’’ or Dated at Rockville, Maryland, this 8th day that many grantees and subrecipients cash if a ‘‘transit pass’’ is not readily of May 1997. have been hiring welfare recipients in available, for distribution to employees. For the U.S. Nuclear Regulatory meaningful jobs for some time. This benefit cannot be used in lieu of Commission. compensation, but must be paid in The Federal procurement community Joseph J. Holonich, addition to any compensation otherwise has a ‘‘Welfare to Work Procurement payable to the employee. Chief, Uranium Recovery Branch, Division Information’’ link on its Acquisition of Waste Management, Office of Nuclear 3. Question—Are there any available Reform Network home page (http:// Material Safety and Safeguards. Federal tax credits to employers for www.arnet.gov). Its welfare to work [FR Doc. 97–12874 Filed 5–15–97; 8:45 am] hiring welfare recipients? information page links to the White BILLING CODE 7590±01±P Answer—Yes. The Work Opportunity House welfare reform information page Tax Credit (WOTC), authorized by the (http://www.whitehouse.gov/WH/ Small Business Job Protection Act of Welfare), the Department of Labor’s 1996, is a Federal tax credit that OFFICE OF MANAGEMENT AND welfare to work page (http:/ BUDGET encourages employers to hire certain job www.doleta.gov/ohrw2w) (which seekers and can reduce employer Governmentwide Implementation of contains welfare recipient recruiting Federal tax liability by as much as the President's Welfare-to-Work and hiring information), the Social $2,100 for each qualified new worker. Initiative for Federal Grant Programs Security Administration’s welfare Welfare recipients who have received reform information page, the Health Aid to Families with Dependent AGENCY: Office of Management and Care Financing Administration’s welfare Children (AFDC) or Temporary Budget. reform and Medicaid page, and the Assistance for Needy Families (TANF) ACTION: Notice. Department of Agriculture’s food assistance for at least a 9-month period, assistance program page. ending during the 9-month period SUMMARY: This Notice provides Additionally, the National which ends on the hiring date, are information, in the form of nonbinding Performance Review will be assembling eligible for the credit. The existing questions and answers, to assist the a data base with examples of employer WOTC expires September 30, 1997, but Federal grantmaking agencies, grantees, success stories, innovative approaches, the Administration has proposed to and subrecipients in responding to the and problems encountered by extend it for one year. The President’s Welfare-to-Work Initiative. employers which need to be addressed Administration has also proposed an The Office of Management and Budget (http://w2w.fed.gov). Employers are enhancement to the WOTC for long- worked with the major Federal requested to provide such examples term welfare recipients that would grantmaking agencies in developing this which can be shared with other increase the maximum annual credit to governmentwide non-regulatory employers. Please send such examples $5,000 (claimable for two years) and guidance. to the National Performance Review, allow the costs of employer-provided FOR FURTHER INFORMATION CONTACT: 750–17th Street—Suite 200, training, health care, and child care to Barbara F. Kahlow, Office of Federal Washington, DC 20006 or e-mail them to count as wages for purposes of the Financial Management, Office of stephen.butterfield@npr.gsa.gov. credit. The Administration has Management and Budget (telephone As part of this welfare-to-work proposed to authorize the enhanced 202–395–3053). The text of this Notice initiative, OMB does not expect to credit for three years ending September is available electronically on the OMB propose amendments to any Federal 30, 2000. For more information on home page at http:// laws, governmentwide common rules, claiming the present WOTC credit, www.whitehouse.gov/WH/EOP/omb. or its grants management circulars. employers should call or visit the State SUPPLEMENTARY INFORMATION: On March 1. Question—Is the provision of employment service office, or call the 8, 1997, the President issued a training for hired welfare recipients an nearest U.S. Department of Labor memorandum to the heads of the allowable cost under Federal assistance Regional WOTC Coordinator. executive departments and agencies programs? 4. Question—What are examples of entitled ‘‘Government Employment for Answer—Yes. The cost of training successful private sector initiatives to Welfare Recipients.’’ This memorandum provided for employee development is hire welfare recipients? 27078 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Answer—Eight successful private organization placed and kept over 500 minimum wage community service sector initiatives are described below. people in unsubsidized private sector positions at non-profit organizations for Since 1984, a private for-profit employment; since the program’s a maximum of one year. When placement and support organization in inception, it has placed a total of more necessary, the organization subsidizes New York, Indianapolis, Albany and than 1,500 people in jobs. The its clients’ wages to bring them up to at Baltimore has helped more than 12,000 organization works hard to build least the poverty line. It also provides welfare recipients find full-time private relationships with local employers and, health and child care benefits based on sector jobs. Recipients are hired after providing its clients with basic job income and helps clients receive the permanently at an average wage of readiness and on-the-job work skills, Earned Income Tax Credit (EITC). $16,000 per year, including benefits. places people permanently into Preliminary results are very This organization works under contract unsubsidized jobs and offers follow-up encouraging; 57 percent are currently with State and local governments and is support to make sure they stay in jobs. employed in private or public sector reimbursed only for successful In 1988, a small private non-profit jobs. outcomes, typically defined as a job organization in the Nation’s capital was retained at least six months. The state of organized for the purposes of preparing In early 1995, a private non-profit New York found that 81 percent of those and distributing meals to local homeless organization in Columbus began placed by this organization are still off shelters and transitional homes from providing intensive human capital welfare after one year. surplus food from hotels, restaurants, development. Its per person job Since 1985, a private non-profit and catered events. Since 1990, the placement costs are about $2300. organization in Chicago has followed an kitchen has provided a training center Services include six weeks of full-time incremental ladders-of-work approach, for jobless individuals to learn food daily job readiness and skills, academic encouraging its participants to begin preparation for employment in the food skills including GED preparation, job with work at their level of ability, service industry, while they help development, placement, and follow-up, including, if necessary, volunteer or prepare over 3000 meals a day. Its 12- a $6–$8 per day transportation part-time work. Clients move one step weeks training program for 12 allowance, and in-house legal counsel. up the ladder of work at a time, with the participants at a time has graduated 150 To date, 193 participants have ultimate goal being full-time, participants, with a 60 percent 180-day completed the program. Also, to date, 91 unsubsidized work. The program also job retention rate overall and a 75 recipients were placed in full-time jobs provides retention, replacement and percent job retention rate in the last that currently average wages of $6.84 an advancement services. Since inception, year. hour and a 90-day retention rate around over 850 clients have participated in the In 1990, a major for-profit 60 percent. program. While 54 percent lose their organization began a pre-employment first job within six months and 75 training program which provides six 5. Question—What are examples of percent lose their first job within a year, weeks of training (180 total hours, appropriate jobs, requiring minimum at the end of a 5-year period, 54 percent composed of 60 classroom hours and on-the-job training, for which welfare have worked at least all 12 months of 120 occupational skills hours, including recipients could be hired? the year either full-time or part-time. job shadowing and hands-on practice) Answer—A welfare recipient’s job Since 1986, a private non-profit for 12–18 participants at a time for placement should be commensurate organization in Cleveland, funded by employment in the hospitality industry. with his or her education, skills, and public grants, foundations, and private Over the last six years, the program has abilities. Thus, a person with the money, has placed more than 3,000 had 600 graduates, with a 90 percent welfare recipients in full-time jobs, graduation rate, a 90 percent retention required education, experience or skills enabling 7,000 men, women, and rate after 90 days, and a 77 percent for a specific position may be placed in children to no longer receive welfare retention rate after 360 days. After such a position; however, persons benefits. Over 80 percent of the families graduates are placed into full-time jobs, without such needed education, have not returned to the welfare rolls the program provides six months of experience or skills may be placed in an and have stayed in the workforce, a follow-up services to promote job entry-level position. Several Federal remarkable result considering that the retention. The training program not only departments have identified appropriate typical family had been on and off teaches skills necessary to obtain a job entry-level job positions, including: File welfare for ten years. The organization but also addresses life management clerk, mail and file clerk, office provides its clients with 8–10 weeks of factors associated with being able to automation clerk, office automation general job readiness training and in retain a job, such as maintaining a trainee, computer clerk/assistant, claims some cases with basic education and positive attitude, being dependable and processing clerk, custodial worker, occupation-specific courses. It then reliable, building confidence and self- printing plant worker, laborer, and matches clients with jobs offered by esteem, communicating effectively, motor vehicle operator. Generally, some 650 local employers, including completing job applications and employees hired into these positions employer-paid health benefits. Once resumes, grooming and hygiene, and will be expected to perform such duties hired, clients receive transitional personal issues, such as transportation as the following: photocopy, receive and services and support from corporate and day care. A keystone of the program deliver mail, file, answer telephones, counselors to ensure that they stay is that trainees do not displace current operate fax machines, maintain and employed. employees of the organization or cause distribute supplies, and clean laboratory Since 1987, a private non-profit a reduction in their work hours. equipment in research facilities. organization in Sarasota, Florida and Since mid 1994, a private non-profit Lafayette, Louisiana has offered job organization in Milwaukee has stressed G. Edward DeSeve, placement and support services to job placement. Clients go through eight Controller. chronically unemployed members of the weeks of job search. Those who do not [FR Doc. 97–12930 Filed 5–15–97; 8:45 am] surrounding community. In 1996, the find private sector jobs are offered BILLING CODE 3110±01±P Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27079

SECURITIES AND EXCHANGE Companies’’), as those terms are defined recognized prime rate and 50 basis COMMISSION respectively in sections 32 and 33 of the points above the federal funds rate; (b) Act (‘‘NEES Investments’’), either 400 basis points above the specified [Release No. 35±26717] directly or indirectly, through a project London Interbank Offered Rate plus any Filings Under the Public Utility Holding entity (‘‘Project Parent’’). The Project applicable reserve requirement; or (c) a Company Act of 1935, as Amended Parents may issue securities to NEES negotiated fixed rate 500 basis points (``Act'') and/or NEERI and NEES and/or NEERI above the 30 years ‘‘current coupon’’ may acquire the securities. The NEES treasury bond rate if such note or other May 9, 1997. Investments may take the form of capital indebtedness in U.S. dollar Notice is hereby given that the stock or shares, debt securities, trust denominated. If such note or other following filing(s) has/have been made certificates, capital contributions, open indebtedness is denominated in the with the Commission pursuant to account advances and partnership currency of a foreign nation, the interest provisions of the Act and rules interests or other equity or participation rate will not exceed a fixed or floating promulgated thereunder. All interested interests, bid bonds or other credit rate which, when adjusted for the persons are referred to the application(s) support to secure obligations incurred prevailing rate of inflation, would be and/or declaration(s) for complete by NEERI and/or Project Parents in equivalent to a rate on a U.S. dollar statements of the proposed connection with Exempt Company denominated borrowing of identical transaction(s) summarized below. The investments or of NEERI’s undertaking average life that does not exceed 10% application(s) and/or declaration(s) and to contribute equity to a Project Parent. over the highest rate set forth above. any amendments thereto is/are available The Order authorized NEES and/or NEES may enter into reimbursement for public inspection through the NEERI to make up to $60 million in agreements with banks to support letters Commission’s Office of Public NEES Investments, provided that the of credit delivered as security for NEES’ Reference. investments would not cause NEES’ or NEERI’s equity contribution Interested persons wishing to ‘‘aggregate investment’’, as defined in obligation to a Project Parent or comment or request a hearing on the rule 53(a)(i), in EWGs and FUCOs to otherwise in connection with a Project application(s) and/or declaration(s) exceed 50% of the NEES system’s Parent’s or NEERI’s Exempt Company should submit their views in writing by ‘‘consolidated retained earnings’’, as project development activities. Any June 2, 1997, to the Secretary, Securities defined in rule 53(a)(ii). reimbursement agreement supporting a and Exchange Commission, NEES and NEERI now propose to letter of credit would have a term not in Washington, D.C. 20549, and serve a remove the $60 million limitation on excess of 30 years. Drawings under any copy on the relevant applicant(s) and/or NEES Investments. NEES and NEERI such letter of credit would bear interest declarant(s) at the address(es) specified also propose to, from time-to-time at not more than 5% above the prime below. Proof of service (by affidavit or, through December 31, 1998: (1) rate of the letter of credit bank as in in case of an attorney at law, by Guarantee the indebtedness or other effect from time-to-time, and letter of certificate) should be filed with the obligations of one or more Exempt credit fees would not exceed 1% request. Any request for hearing shall Companies; (2) assume the liabilities of annually of the face amount of the letter identify specifically the issues of fact or one or more Exempt Companies; and/or of credit. law that are disputed. A person who so (3) enter into guarantees and letters of DQE, Inc., et al. (70–9027) requests will be notified of any hearing, credit reimbursement agreements in if ordered, and will receive a copy of support of equity contribution DQE, Inc., Cherrington Corporate any notice or order issued in the matter. obligations or otherwise in connection Center, Suite 100, 500 Cherrington After said date, the application(s) and/ with project development activities for Parkway, Coraopolis, Pennsylvania, or declaration(s), as filed or as amended, one or more Exempt Companies. 15108–3184 (‘‘DQE’’), a public utility may be granted and/or permitted to As proposed, NEES Investments may holding company exempt under section become effective. be made from NEES to NEERI and/or 3(a)(1) and rule 2 from all provisions of Project Parents directly or indirectly. the Act except section 9(a)(2), and its New England Electric System, et al. Any open account advance made by energy services subsidiary, DQE Energy (70–8783) NEES will be non-interest bearing and Services, Inc., One North Shore Center, New England Electric System shall have a maturity not exceeding one 12 Federal Street, Suite 200, Pittsburgh, (‘‘NEES’’), a registered holding year. Any promissory note issued to Pennsylvania 15212 (‘‘Energy Services’’) company, and its nonutility subsidiary NEES by NEERI or a Project Parent, or and Energy Services’ subsidiary, DH company, New England Electric to NEERI by a Project Parent, and any Energy, Inc., One North Shore Center, Resources, Inc. (‘‘NEERI’’) (together, promissory note or other similar 12 Federal Street, Suite 200, Pittsburgh, ‘‘Applicants’’), both located at 25 evidence of indebtedness issued by a Pennsylvania 15212 (‘‘DH Energy’’) Research Drive, Westborough, Project Parent to a person other than collectively, ‘‘Applicants’’), have filed Massachusetts 01582, have filed a post- NEES or NEERI with respect to which an application under sections under effective amendment to their NEES or NEERI may issue a guarantee, 9(a)(2) and 10 of the Act. application-declaration under sections would mature not later than 30 years By order dated March 24, 1995 (HCAR 6(a), 7, 9(a), 10, 12(b), 13(b), 32, and 33 after the date of issuance. It would bear No. 26257), Allegheny Development of the Act and rules 45 and 53 interest at a rate not greater than the Corporation (‘‘ADC’’), an indirect public thereunder. prime rate of a bank to be designated by utility energy services subsidiary of By order dated April 15, 1996 (HCAR NEES in the case of a promissory note DQE, was authorized to acquire utility No. 26504) (‘‘Order’’), the Commission issued to NEES or NEERI. In the case of assets to provide energy services to the authorized NEES and/or NEERI to any note or similar evidence of Midfield Terminal Complex at the acquire interests in, finance the indebtedness issued to a person other Greater Pittsburgh International Airport. acquisition, and hold the securities, of than NEES or NEERI and guaranteed by The energy services provided by ADC one or more exempt wholesale NEES or NEERI, the rate would not are generated by four boilers and seven generators (‘‘EWGs’’) and foreign utility exceed: (a) The greater of 250 basis chillers to provide hot and cold water to companies (‘‘FUCOs’’) (together, Exempt points above the lending bank’s or other the complex and three capacitors 27080 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices connecting DQE’s generating facilities to SECURITIES AND EXCHANGE II. Background and Description the airport facilities. COMMISSION The BSE proposes to amend certain DQE and Energy Services now [Release No. 34±38614; File No. SR±BSE± provisions of the Execution Guarantee propose to cause the execution of an 96±10] Rule and BEACON Rule 5. The Operation and Maintenance Services Execution Guarantee Rule provides Agreement (‘‘O&M Agreement’’) Self-Regulatory Organizations; Order customers with primary market price between ADC and an entity that will be Granting Approval to Proposed Rule protection on small size orders ranging formed as a subsidiary of Energy Change and Notice of Filing and Order in size from 100 shares up to and Services (‘‘Newco’’). The term of the Granting Accelerated Approval to including 1,299 shares, regardless of the O&M Agreement will be 5 years and Amendment Nos. 3 and 4 to Proposed displayed bid or offer size in the Rule Change by the Boston Stock primary market at the time the order is Newco will receive compensation in the Exchange, Inc., To Amend the entered. The proposed rule change approximate amount of $4.5 million. Execution Guarantee Rule and deletes the current language of the Under the O&M Agreement, Newco will BEACON Rule 5 Execution Guarantee Rule that indicates serve as operator of ADC’s electrical and that the 1,299 share guarantee applies thermal energy facility located at the May 12, 1997. ‘‘regardless of the size of the order.’’ The Midfield Terminal Complex. I. Introduction proposed rule change now states that On January 22, 1997, ADC entered BSE specialists must guarantee On December 1, 1997,1 the Boston execution on all agency market and into: (1) The Heinz Facility Lease Stock Exchange, Inc. (‘‘BSE’’ or marketable limit orders from 100 up to (‘‘Lease’’) between Heinz USA (‘‘Heinz’’) ‘‘Exchange’’) submitted to the Securities and ADC; and (2) the Energy Supply and including 1,299 shares. and Exchange Commission The proposed rule change also Agreement (‘‘Supply Agreement’’), (‘‘Commission’’), pursuant to Section among Heinz, ADC and Duquesne eliminates the 2,500 execution 19(b)(1) of the Securities Exchange Act guarantee for most actively traded Energy, Inc., a subsidiary of Energy 2 of 1934 (‘‘Act’’) and Rule 19b–4 stocks (‘‘MATS’’) from the Execution Services. Both agreements provided for 3 thereunder, a proposed rule change to Guarantee Rule. The proposed rule the assignment of all of ADC’s rights amend Chapter II, Section 33, the change moves rule text covering the and obligations to DH Energy. The Execution Guarantee Rule (‘‘Execution obligation for filling limit orders from Applicants now propose to have ADC Guarantee Rule’’), and Chapter XXXIII, the Interpretations and Policies section assign to DH Energy all of ADC’s rights Section 5, the Boston Exchange to the body of the Execution Guarantee and obligations under the two Automated Communication Order- Rule and labels it as paragraph (c). The agreements. Routing Network (‘‘BEACON System’’) proposed rule change also renumbers The Lease provides, among other Rule (‘‘BEACON Rule 5’’). and clarifies the remaining The proposed rule change, including things, that DH Energy will lease, Interpretations and Policies to the Amendment Nos. 1 and 2, was operate and maintain an inside the Execution Guarantee Rule. published for comment in Securities fence energy facility (‘‘Facility’’) for The proposed rule change clarifies Exchange Act Release No. 38331 proposed Interpretation and Policy .03 Heinz that will provide energy in the (February 24, 1997), 62 FR 9470 (March form of steam, electricity and of the Execution Guarantee Rule to limit 3, 1997). No comment letters were a specialist’s obligation for compressed air. The Facility has two 3 received on the proposal. The Exchange simultaneous orders to the accumulated MV steam turbine generators capable of subsequently filed Amendment Nos. 3 displayed national best bid and offer generating 40 million kilowatt hours of and 4 to the proposed rule change on (‘‘NBBO’’) size. Under proposed electricity per year and coal/gas fired March 26, 1997 and April 7, 1997, Interpretation and Policy .04, the size of boilers capable of generating one billion respectively.4 limit order executions will be governed pounds of steam per year. Under the by the size displayed on the Supply Agreement, DH Energy will be 1 The Exchange also filed Amendment Nos. 1 and Consolidated Quote System (‘‘CQS’’). obligated to sell to Heinz electricity and 2 on February 14, 1997 and February 19, 1997, respectively, the substance of which was Amendment No. 3 amends proposed steam produced by the Facility for use incorporated into the notice. See letters from Karen Interpretation and Policy .05 to state an in Heinz’ manufacturing processes. A. Aluise, Assistant Vice President, BSE, to Michael adjustment in execution price may be Walinskas, Senior Special Counsel, Market allowed (as prescribed in proposed Following the consummation of the Regulation, Commission, dated February 10, 1997 transactions, the Applicants state that (‘‘Amendment No. 1’’) and February 13, 1997 Interpretation and Policy .06) if the DQE and Energy Services will be (‘‘Amendment No. 2’’) respectively. displayed quotations of the CQS can be exempt public utility holding 2 15 U.S.C. 78s(b)(1). shown to be in error or a market center 3 17 CFR 240.19b–4. is experiencing system problems that companies under section 3(a)(1) and 4 Amendment No. 3 amends proposed result in invalid quotations in CQS. rule 2 of the Act. Interpretation and Policy .05 to the Execution Finally, under proposed Interpretation For the Commission, by the Division of Guarantee Rule to state that an adjustment in price may be allowed if the displayed quotations of the and Policy .06, as amended by Investment Management, pursuant to Consolidated Quote System (‘‘CQS’’) can be Amendment No. 4, specialists can delegated authority. demonstrated to be in error or a market center is obtain relief from the requirements of Margaret H. McFarland, experiencing system problems which result in an the remainder of the Execution invalid quotation in CQS. Amendment No. 4 5 Deputy Secretary. amends proposed Interpretation and Policy .06 to Guarantee Rule upon approval from [FR Doc. 97–12823 Filed 5–15–97; 8:45 am] state that specialists can seek relief from the requirements of the Execution Guarantee Rule from (‘‘Amendment No. 3’’) and April 4, 1997 BILLING CODE 8010±01±M two out of three floor officials, and specifies that (‘‘Amendment No. 4’’), respectively. floor officials include floor members of the Board 5 The Commission notes that the proposed of Governors and the Market Performance Interpretation and Policy .06 also amends the rule Committee. See letters from Karen A. Aluise, to state that the specialist can now seek relief from Assistant Vice President, BSE, to Michael the remainder of the entire Execution Guarantee Walinskas, Senior Special Counsel, Market Rule, rather than from just the Interpretations and Regulation, Commission, dated March 20, 1997 Policies. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27081 two out of three Floor Officials, rather The proposed rule change to marketable limit orders from 100 up to than the current standard of requiring paragraph (c) of BEACON Rule 5 and including 1,299 shares, is consistent the approval of two floor members of changes the BEACON reference price with the Act. The Commission notes the Board of Governors or the Market from the primary market best bid or that the Exchange has stated that the Performance Committee. Floor officials offer price to the consolidated best bid Execution Guarantee Rule provides include floor members of the Board of or offer (‘‘CQ/BBO’’) price. All market customers with primary market price Governors and the Market Performance and marketable limit orders will be protection on small size orders and that Committee.6 filled in their entirety, up to the orders over 1,299 shares were not BEACON Rule 5 addresses the BEACON Rule 5 automatic execution originally intended to receive a partial function of the BEACON System on the parameter, regardless of the displayed execution of 1,299 shares, but were to be trading floor. The automatic execution size of the CQ/BBO. In addition, the handled, consistent with best execution function in BEACON aids specialists in proposed rule change to paragraph (c) of obligations, based on prints in the the execution of customer orders. The BEACON Rule 5 eliminates the last primary market. The Commission system performs a price check and sentence of paragraph (c), which refers believes that this portion of the automatically executes certain to bids and offers superior in price to proposed rule change ensures the qualifying orders without the the BEACON reference price. protection of investors and the public intervention of a specialist, except for The proposed rule change also interest by continuing to require on the potential price improvement and the amends paragraph (d) of BEACON Rule BSE an execution guarantee for orders fact that the specialist must stop orders 5 to give specialists discretion to stop up to 1,299 shares. The Commission that would be outside the primary orders that would be executed outside notes that for orders greater than 1,299 market price range for the day, under the primary market price range for the shares, members must continue to current BEACON Rule 5. The 1,299 day, by replacing ‘‘will be ‘stopped’ ’’ satisfy the applicable best execution share automatic execution parameter in with ‘‘should be ‘stopped’.’’ The obligations, thereby ensuring the current BEACON Rule 5 is the same proposed rule change eliminates both appropriate handling of such orders. size as the execution guarantee paragraphs (e) (requiring that ‘‘stopped’’ The Commission believes that the contained in the Execution Guarantee orders must be executed by the close of proposed rule change eliminating the Rule, although higher (2,500 shares) and trading) and (f) (stating that principal MATS 2,500 guarantee from the lower (599 shares) parameters are orders will not be subject to the Execution Guarantee Rule is consistent available in BEACON in certain execution guarantee as defined in this with the Act. The Commission notes situations. section) of BEACON Rule 5. that there is no requirement under the Current BEACON Rule 5 contains federal securities laws that BSE III. Discussion three automatic execution parameters; guarantee a particular level of execution 2,500 shares, 1,299 shares (Tier I), and The Commission finds that the of shares. BSE previously instituted the 599 shares (Tier II). The proposed rule proposed rule change is consistent with MATS guarantee in order to compete change to paragraph (a) of BEACON the requirements of the Act and the more effectively for small order business Rule 5 eliminates all references to Tier rules and regulations thereunder and attract order flow;9 however, it has I and II stocks, effectively subjecting all applicable to a national securities now determined that the MATS the stocks covered by BEACON Rule 5 exchange, and, in particular, with the guarantee is no longer desirable. The to the 1,299 automatic execution requirements of Section 6(b)(5).7 Commission believes that the MATS parameter unless they are specifically Specifically, the Commission believes guarantee is not necessary to ensure an exempted under paragraph (b). The that the proposed rule change is acceptable quality of market depth and proposed rule change to paragraph (b) of designed to promote just and equitable liquidity on the BSE, particularly since BEACON Rule 5, which also eliminates principles of trade and to remove the Execution Guarantee Rule retains a all references to Tier I and Tier II stocks, impediments to and perfect the guarantee on all market and marketable still allows the specialist to request a mechanism of a free and open market limit orders from 100 up to and 599 automatic execution parameter and a national market system, and, in including 1,299 shares. Moreover, the under certain circumstances. In general, to protect investors and the Commission notes that the specialists’ addition, paragraph (a) still allows public interest, and is not designed to best execution obligations should serve specialists to provide automatic permit unfair discrimination between to ensure proper execution of execution parameters larger than the customers, issuers, brokers, or dealers. transactions formerly subject to the 1,299 minimum requirement. Accordingly, as discussed below, the MATS guarantee. The Exchange has also proposed rule proposal is consistent with the The Commission believes that the certain technical changes to BEACON requirements of Section 6(b)(5) that changes to the Interpretations and Rule 5. Members will still have access Exchange rules facilitate transactions in Policies section of the Execution to review the automatic execution securities while continuing to further Guarantee Rule are consistent with the parameters, which will be published on investor protection and the public Act because they should facilitate the the System but will not be published in interest.8 trading of securities in a free and open hard copy anymore, as is currently The Commission believes that the market, while continuing to protect done. All references to the word proposed rule change to the Execution investors and serve the public interest. ‘‘guarantee’’ will be replaced with Guarantee Rule that deletes the The Commission notes that the original ‘‘automatic execution parameters’’ or ‘‘regardless of the size of the order’’ language of Interpretation and Policy ‘‘parameters.’’ The proposed rule change language from the execution guarantee, .03, regarding simultaneous orders, was also amends paragraphs (c) and (d) of thereby stating that the guarantee adopted prior to electronic order routing BEACON Rule 5 to eliminate all applies to all agency market and and was not designed to address the references to the ‘‘BEACON quotation’’ potentially high volume of today’s 7 and replaces them with ‘‘BEACON 15 U.S.C. 78f(b)(5). electronic trading environment. The 8 In approving this rule, the Commission notes reference price.’’ that it has considered the proposed rule’s impact on efficiency, competition, and capital formation. 15 9 See Securities Exchange Act Release No. 20029 6 See Amendment No. 4. U.S.C. 78c(f). (August 1, 1983), 48 FR 36043 (August 8, 1983). 27082 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Commission believes that when include floor members of the Board of The proposed rule change to multiple orders are received in a short Governors and the Market Performance paragraph (c) of BEACON Rule 5 period of time, particularly in illiquid Committee.12 Under the proposed rule changes the BEACON reference price stocks, it is appropriate to limit a change, specialists would need the from the primary market best bid or specialist’s obligation to the NBBO size. approval of two out of the first three offer to the consolidated market best bid The Commission believes that such a floor officials they ask.13 The or offer (‘‘BBO’’). The Commission notes limit will serve to protect the specialist Commission believes that this change that the proposed rule change by limiting their exposure, while at the provides a clear standard that prevents eliminating the last sentence of same time continuing to ensure that specialists from lobbying numerous paragraph (c) of BEACON Rule 5, which customers receive the best price that is floor officials until they find two who refers to bids and offers superior in available in the intermarket system in agree with their point of view. The price to the BEACON reference price, the stock, up to the accumulated NBBO Commission also believes that this reflects the incorporation of these size. change should provide a tie-breaker in quotations into the BEACON reference The Commission notes that proposed the instance that two floor officials do price by the changing of the reference Interpretation and Policy .04 of the not agree with each other. price from the primary market BBO to Execution Guarantee Rule now The Commission believes that the the consolidated BBO. The Commission explicitly addresses limit order size proposed rule change to paragraph (a) of believes that this change in the only; the size of limit orders will be BEACON Rule 5, which eliminates all reference price should ensure that governed by the size displayed on the references to Tier I and II stocks, thereby investors obtain a better execution price CQS. The proposed rule change restricts subjecting all BEACON stocks to a 1,299 for their trades because specialists this Interpretation and Policy to limit automatic execution parameter, is would be executing trades at the best orders because treatment of market consistent with the Act. The change price available in the entire intermarket order and marketable limit order size is should aid specialists in the execution system, instead of merely the primary separately addressed in proposed of customer orders and help the market price. paragraph (a) of the Execution BEACON System function more The Exchange believes that the Guarantee Rule.10 The Commission also efficiently because the standard 1,299 proposed rule change to paragraph (d) of notes that the guaranteed price of BEACON automatic execution BEACON Rule 5, to give specialists market orders is governed by the CQS/ parameter now equals the standard discretion to stop orders that would be BBO, under paragraph (b) of the 1,299 execution guarantee. The executed outside the primary market Execution Guarantee Rule, and that Commission notes that a specialist may price range for the day, is consistent marketable limit orders are in effect also provide a lower (599 shares) or higher with the Act. The Commission notes governed by the CQS/BBO since they execution parameter. The Commission that there is no requirement that the are limit orders whose stated limit price believes that this change to BEACON specialist must stop the stock under equals the market price when the orders Rule 5 will continue to adequately serve such circumstances and believes that are entered. the needs of investors. Particularly, the allowing discretion will not negatively Under Amendment No. 3, the standard 1,299 automatic execution impact on the best execution obligation Exchange will now be able to adjust the parameter provides an adequate of the specialist.15 execution price of trades in all measure of depth for automatic The Commission finds good cause to situations where another market center executions. Although a specialist can approve Amendment Nos. 3 and 4 to the is experiencing system problems of any request a lower automatic execution proposed rule change prior to the kind that result in an invalid quotation parameter of 599 shares, the thirtieth day after the date of in CQS or if the displayed CQS Commission notes that the Exchange publication of notice of filing thereof in quotations can be demonstrated to be in can only grant such a request upon a the Federal Register. As noted above, error. The Commission notes that this showing of good cause. The Amendment No. 3 amends proposed change to proposed Interpretation and Commission believes that this change is Interpretation and Policy .05 to the Policy .05 is intended to broaden the not substantive because under current Execution Guarantee Rule to state that range of instances when the Exchange BEACON Rule 5 all BEACON stocks are an adjustment in price may be allowed can adjust the execution price, and that subject to the 1,299 guarantee unless if the displayed quotations of the CQS this change should serve to protect both they are exempted and guaranteed a 599 can be demonstrated to be in error or a investors and the specialists by ensuring parameter, which is only granted for market center is experiencing system that the Exchange will have the ability good cause shown, or are guaranteed a problems which result in an invalid to remedy incorrect prices whenever quotation in CQS. By broadening the they occur. higher 2,500 parameter for stocks Under the proposed rule change to identified by specialists. The proposed the use of the word ‘‘guarantee’’ in regard to the 11 change eliminates the labels on the Interpretation and Policy .06, required automatic execution parameter in specialists can now obtain relief from different automatic execution BEACON Rule 5 has been confusing. The proposed the requirements of the Execution parameters but retains the ability of the rule change also amends paragraphs (c) and (d) of Guarantee Rule upon approval of two specialist to request and receive a 599 BEACON Rule 5 to eliminate all references to the ‘‘BEACON quotation’’, which the Exchange believes out of three Floor Officials, rather than exemption or to provide a guarantee 14 is more closely associated with the specialist’s the current standard of two floor higher than the 1,299 parameter. displayed quotation, and replaces them with members of the Board of Governors or ‘‘BEACON reference price.’’ 12 See Amendment No. 4, supra note 4. 15 The Commission notes that the Exchange is the Market Performance Committee. The 13 Commission notes that Floor Officials Phone conversation between Karen A. Aluise, eliminating BEACON Rule 5(e) because Chapter II, Assistant Vice President, BSE, and Heather Seidel, Section 38(d), the BSE’s stopping stock rule, states Attorney, Market Regulation, Commission, on April that all orders stopped pursuant to that section shall 10 Under the proposed rule change to the 4, 1997. be executed by the end of the trading day on which Execution Guarantee Rule, specialists must now 14 The proposed rule change also makes certain the order was stopped; and that the Exchange is guarantee execution on all agency market and technical changes to BEACON Rule 5. All eliminating BEACON Rule 5(f) because BEACON marketable limit orders from 100 up to and references to the word ‘‘guarantee’’ will be replaced Rule 1(a) states that only agency orders will be including 1,299 shares. with ‘‘automatic execution parameters’’ or eligible for automatic execution in the BEACON 11 See Amendment No. 4, supra note 4. ‘‘parameters’’ because the Exchange believes that System. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27083 range of instances where the Exchange Margaret H. McFarland, A. Self-Regulatory Organization’s can adjust the execution price, Deputy Secretary. Statement of the Purpose of, and Amendment No. 3 should continue to [FR Doc. 97–12890 Filed 5–15–97; 8:45 am] Statutory Basis for, the Proposed Rule help protect specialists and investors BILLING CODE 8010±01±M Change and the public interest by ensuring that The purpose of the proposed rule the Exchange has the ability to remedy change is to reduce from 100 contracts erroneous prices whenever they occur. SECURITIES AND EXCHANGE to 25 contracts the minimum value size Amendment No. 4 amends proposed COMMISSION of closing transactions in an exercises of Interpretation and Policy .06 to the FLEX Equity Options, and to make a Execution Guarantee Rule to state that a [Release No. 34±38607; File No. SR±CBOE± comparable reduction in the minimum specialist who wants to receive relief 97±10] value size of FLEX Equity Quotes in from the requirements of the Execution response to a Request for Quotes. Guarantee Rule must obtain the Self-Regulatory Organizations; Notice The reason for reducing the minimum approval of two out of three floor of Filing of Proposed Rule Change by value size of closing and exercise officials, and specifies that floor officials Chicago Board Options Exchange, transactions in FLEX Equity Options is include floor members of the Board of Incorporated Relating to Minimum that, based on the Exchange’s Governors and the Market Performance Sizes for Closing Transactions, experience to date with such options, it Committee. Amendment No. 4 will Exercises, and Responses to Requests appears that the existing 100 contract prohibit ‘‘forum shopping’’ among floor for Quotes in FLEX Equity Options minimums are too large to accommodate officials and will provide a tie-breaker the needs of certain firms and their in the situations where two floor May 9, 1997. customers.1 These firms may purchase 100 or more FLEX Equity Options in an officials disagree. Accordingly, the Pursuant to Section 19(b)(1) of the Commission believes that it is opening transactions for a single firm Securities Exchange Act of 1934, 15 account in which more than one of the consistent with Section 6(b)(5) of the U.S.C. 78s(b)(1), notice is hereby given Act to approve Amendment Nos. 3 and firm’s clients have an interest. If one of that on February 21, 1997, the Chicago these clients wants to redeem its 4 to the proposal on an accelerated Board Options Exchange, Incorporated basis. investment in the account, the firm (‘‘CBOE or Exchange’’) filed with the likely will want to engage in a closing Interested persons are invited to Securities and Exchange Commission or exercise transaction in order to submit written data, views, and (‘‘Commission’’) the proposed rule reduce the account’s position in those arguments concerning Amendment Nos. change as described in Items I, II, and FLEX Equity Options by the number 3 and 4 to the rule proposal. Persons III below, which Items have been being redeemed. Currently, Rule making written submissions should file prepared by the CBOE. The Commission 24A.4(a)(4)(iii) imposes a 100 contract six copies thereof with the Secretary, is publishing this notice to solicit minimum on all transactions in FLEX Securities and Exchange Commission, comments on the proposed rule change Equity Options unless the transaction is 450 Fifth Street, N.W., Washington, D.C. from interested persons. for the entire remaining position in the 20549. Copies of the submission, all account. Thus, if the redeeming client’s subsequent amendments, all written I. Self-Regulatory Organization’s interest is less than 100 FLEX Equity statements with respect to the proposed Statement of the Terms of Substance of Options and does not represent the total rule change that are filed with the the Proposed Rule Change remaining position in the account, Rule Commission, and all written The CBOE proposes to reduce from 24A.4(a)(4)(iii) as it stands presently, communications relating to the 100 contracts to 25 contracts the prevents the firm from closing or proposed rule change between the minimum value size of closing exercising positions of this size. Commission and any person, other than The Exchange believes that the transactions in and exercises of FLEX those that may be withheld from the proposed rule change to Rule Equity Options, and to make a public in accordance with the 24A.4(4)(iii) would remedy the situation comparable reduction in the minimum provisions of 5 U.S.C. 552, will be described above, by permitting an order value size of FLEX Equity Quotes in available for inspection and copying at to close or exercise as few as 25 FLEX response to a Request for Quotes. the Commission’s Public Reference Equity Option contracts. The Room. Copies of such filing also will be The text of the proposed rule change corresponding change to Rule available for inspection and copying at is available at the Office of the 24A.4(a)(iv), which governs the the principal office of the Exchange. All Secretary, CBOE and at the Commission. minimum size for FLEX Equity Quotes submissions should refer to File No. that may be entered in response to II. Self-Regulatory Organization’s Request for Quotes, is necessary in order SR–BSE–96–10 and should be Statement of the Purpose of, and submitted by June 6, 1997. to provide the liquidity needed to Statutory Basis for, the Proposed Rule facilitate the execution of closing orders IV. Conclusion Change between 25 and 99 FLEX Equity Option contracts that would be permitted by the It is therefore ordered, pursuant to In its filing with the Commission, the 16 CBOE included statements concerning Section 19(b)(2) of the Act, that the 1 The Exchange notes that the existing customer proposed rule change (SR–BSE–96–10), the purpose of and basis for the base for FLEX Equity Options includes both including Amendment Nos. 3 and 4, is proposed rule change and discussed any institutional investors, in particular mutual funds, approved. comments it received on the proposed money managers and insurance companies, and high net work individuals who meet the For the Commission, by the Division of rule change. The text of these statements ‘‘sophisticated investor’’ criteria applied to various Market Regulation, pursuant to delegated may be examined at the places specified clients by Exchange member firms. See Letter from authority.17 in Item IV below. The CBOE has William J. Barclay, Vice President, Strategic prepared summaries, set forth in Planning and International Development, CBOE, to Sharon Lawson, Senior Special Counsel, Office of 16 15 U.S.C. 78s(b)(2). sections A, B, and C below, of the most Market Supervision, Division of Market Regulation, 17 17 CFR 200.30–3(a)(12). significant parts of such statements. Commission, dated April 21, 1997 (‘‘CBOE Letter’’). 27084 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices proposed amendment to Rule (b) Institute proceedings to determine solicit comments on the proposed rule 24A.4(4)(iii). whether the proposed rule change change from interested persons. should be disapproved. The Exchange notes that the Exchange I. Self-Regulatory Organization’s would issue a circular that (1) Describes IV. Solicitation of Comments Statement of the Terms of Substance of the new rule; and (2) reminds all the Proposed Rule Change members and member firms of their Interested persons are invited to continued responsibility to insure that submit written data, views, and The Exchange proposes to amend FLEX Equity Options are utilized only arguments concerning the foregoing. Section (q) of its Membership Dues and by sophisticated investors with the Persons making written submissions Fees Schedule. necessary financial resources to sustain should file six copies thereof with the Chicago Stock Exchange, Incorporated Secretary, Securities and Exchange the possible losses arising from Membership Dues and Fees transactions in the requisite FLEX Commission, 450 Fifth Street, N.W., Equity Options class size.2 The Washington, D.C. 20549. Copies of the Additions are italized; deletions Exchange will submit surveillance submission, all subsequent [bracketed]. amendments, all written statements procedures for the Commission’s review (q) Self-Regulatory Organization Fee,2 with respect to the proposed rule prior to considering this proposal for $100 per member and member change that are filed with the approval, that will help to ensure that organization per month. only such sophisticated investors are Commission, and all written utilizing this product. communications relating to the II. Self-Regulatory Organization’s proposed rule change between the Statement of the Purpose of, and The Exchange believes by providing Commission and any person, other than firms and their customers greater Statutory Basis for, the Proposed Rule those that may be withheld from the Change flexibility to trade FLEX Equity options public in accordance with the In its filing with the Commission, the by lowering from 100 to 25 the provisions of 5 U.S.C. 552, will be CHX included statements concerning minimum number of contracts required available for inspection and copying in the purpose of, and basis for, the for a closing transaction, for exercises, the Commission’s Public Reference proposed rule change and discussed any and for FLEX Quotes responsive to a Section, 450 Fifth Street, N.W., comments it received on the proposed Request for Quotes, the proposed rule Washington, D.C. 20549. Copies of such rule change. The text of these statements change is consistent with and furthers filing will also be available for may be examined at the places specified the objectives of Section 6(b)(5) of the inspection and copying at the principal in Item IV below. The CHX has prepared Securities Exchange Act of 1934 by office of the CBOE. All submissions summaries, set forth in sections A, B removing impediments to and should refer to the File No. SR–CBOE– and C below, of the most significant perfecting the mechanism of a free and 97–10 and should be submitted by June aspects of such statements. open market in securities and otherwise 6, 1997. serving to protect investors and the A. Self-Regulatory Organization’s public interest. For the Commission by the Division of Market Regulation, pursuant to the delegated Statement of the Purpose of, and B. Self-Regulatory Organization’s authority.3 Statutory Basis for, the Proposed Rule Statement on Burden on Competition [FR Doc. 97–12886 Filed 5–15–97; 8:45 am] Change The CBOE does not believe that the BILLING CODE 8010±01±M 1. Purpose proposed rule change will impose any The purpose of the proposed rule burden on competition. SECURITIES AND EXCHANGE change is to clarify the existing exemption from the Exchange’s SRO fee. C. Self-Regulatory Organization’s COMMISSION This fee helps recoup costs incurred by Statement on Comments on the the Exchange in performing its self- Proposed Rule Change Received From [Release No. 34±38605; File No. SR±CHX± 97±7] regulatory function. Specifically, rather Members, Participants, or Others than exempting organizations that have No written comments were solicited Self-Regulatory Organizations; Notice no securities transaction revenue, the or received with respect to the proposed of Filing and Immediate Effectiveness Exchange proposes to exempt rule change. of Proposed Rule Change by the memberships to which a nominee has Chicago Stock Exchange, Incorporated not been assigned and which are not III. Date of Effectiveness of the Relating to SRO Fees otherwise being used. In this regard, to Proposed Rule Change and Timing for qualify for this exemption, the owner of May 9, 1997. Commission Action the membership cannot hold itself out Pursuant to Section 19(b)(1) of the as a CHX member to others by virtue of Within 35 days of the date of Securities Exchange Act of 1934 (the publication of this notice in the Federal 1 its ownership of that membership and ‘‘Act’’), notice is hereby given that on cannot otherwise conduct business on Register or within such longer period (i) May 1, 1997, the Chicago Stock As the Commission may designate up to the CHX on the basis of its ownership Exchange, Incorporated (‘‘CHX’’ or of that membership. This exemption is 90 days of such date if it finds such ‘‘Exchange’’) filed with the Securities longer period to be appropriate and applied on a membership by and Exchange Commission membership basis and not on a member publishes its reasons for so finding or (‘‘Commission’’ or ‘‘SEC’’) the proposed (ii) as to which the self-regulatory rule change as described in Items I, II, organization consents, the Commission 2 This fee shall not be applicable to [inactive and III below, which Items have been organizations. An inactive organization is one will: prepared by the Exchange. The which has no securities transaction revenue, as (a) By order approve such proposed Commission is publishing this notice to determined by annual FOCUS reports, as long as rule change, or the organization continues to have no such revenue each month] memberships to which a nominee has 3 17 CFR 200.30–3(a)(12). not been assigned and which are not otherwise 2 See CBOE Letter, supra note 1. 1 15 U.S.C. 78s(b)(1) (1988). being used. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27085 by member basis. As a result, if a person with respect to the proposed rule II. Self-Regulatory Organization’s or entity owns more than one change that are filed with the Statement of the Purpose of, and membership on the CHX, it is possible Commission, and all written Statutory Basis for, the Proposed Rule for that person or entity to qualify for communications relating to the Change the exemption for one membership (by proposed rule change between the In its filing with the Commission, not having a nominee and not otherwise Commission and any person, other than DTC included statements concerning using the membership), but not qualify those that may be withheld from the the purpose of and basis for the for the exemption for another public in accordance with the proposed rule change and discussed any membership owned by that person or provisions of 5 U.S.C. 552, will be comments that it received on the entity. available for inspection and copying in proposed rule change. The text of these the Commission’s Public Reference 2. Statutory Basis statements may be examined at the Room. Copies of such filing will also be places specified in Item IV below. DTC The proposed rule change is available for inspection and copying at has prepared summaries, set forth in consistent with Section 6(b)(4) of the the principal office of the Exchange. All sections (A), (B), and (C) below, of the Act in that it provides for the equitable submissions should refer to File No. most significant aspects of such allocation of reasonable dues, fees and CHX–97–7 and should be submitted by statements.2 other charges among its members and June 6, 1997. issuers and persons using its facilities. (A) Self-Regulatory Organization’s For the Commission, by the Division of Statement of the Purpose of, and B. Self-Regulatory Organization’s Market Regulation, pursuant to delegated Statutory Basis for, the Proposed Rule authority.5 Statement on Burden on Competition Change Margaret H. McFarland, The Exchange does not believe that Deputy Secretary. Currently, DTC’s organization the proposed rule change will result in certificate and by-laws provide that [FR Doc. 97–12885 Filed 5–15–97; 8:45 am] any burden on competition that is not DTC’s board may consist of from five to necessary or appropriate in furtherance BILLING CODE 8010±01±M fifteen directors. At its March meeting, of the purposes of the Act, as amended. DTC’s board decided that National C. Self-Regulatory Organization’s SECURITIES AND EXCHANGE Securities Clearing Corporation Statement on Comments on the COMMISSION (‘‘NSCC’’) President David M. Kelly Proposed Rule Change Received From should join DTC’s board and that Members, Participants, or Others [Release No. 34±38602; File No. SR±DTC± William F. Jaenike, DTC’s Chairman and 97±04] Chief Executive Officer, should join Written comments were neither NSCC’s board and sit on that board’s solicited nor received. Self-Regulatory Organizations; The executive committee. In order to Depository Trust Company; Notice of III. Date of Effectiveness of the accommodate the addition of Mr. Kelly Filing and Order Granting Accelerated Proposed Rule Change and Timing for and to allow for possible limited future Approval of a Proposed Rule Change Commission Action expansion of the board, at DTC’s April to Increase the Size of the Board of 1, 1997, board meeting, the board The foregoing rule change has become Directors approved an increase in the maximum effective on May 1, 1997, the date of number of directors from fifteen to May 9, 1997. receipt of this filing by the Commission, twenty and an increase in the current pursuant to Section 19(b)(3)(A)(ii) of the Pursuant to Section 19(b)(1) of the membership of the board from fifteen to Act 3 and paragraph (e) of Rule 19b–4 4 Securities Exchange Act of 1934 1 seventeen. The seventeenth director is thereunder, because it establishes or (‘‘Act’’), notice is hereby given that on expected to be a banker in order to changes a due, fee, or other charge April 29, 1997, The Depository Trust maintain the balance of DTC board imposed by the Exchange. Company (‘‘DTC’’) filed with the membership between representatives of At any time within sixty days of the Securities and Exchange Commission banks and broker-dealers that has been filing of the proposed rule change, the (‘‘Commission’’) the proposed rule in existence for many years. DTC has Commission may summarily abrogate change (File No. SR–DTC–97–04) as filed a letter application with the New such rule change it if appears to the described in Items I and II below, which York State Banking Department Commission that such action is items have been prepared primarily by (‘‘NYSBD’’) seeking approval for DTC to necessary or appropriate in the public DTC. The Commission is publishing this amend its organization certificate to interest, for the protection of investors, notice and order to solicit comments on allow for a maximum of twenty or otherwise in furtherance of the the proposed rule change from directors on DTC’s board. In addition to purposes of the Act. interested persons and to grant filing an application with the NYSBD, accelerated approval of the proposal. IV. Solicitation of Comments DTC will be asking its shareholders to I. Self-Regulatory Organization’s vote to approve the amendments to the Interested persons are invited to Statement of the Terms of Substance of organization certificate and the by-laws, submit written data, views, and the Proposed Rule Change to elect individuals to fill the newly arguments concerning the foregoing. created seats on DTC’s board, and to Persons making written submissions The proposed rule change will amend approve the certificate of amendment. should file six copies thereof with the DTC’s organization certificate and by- DTC believes the proposed rule Secretary, Securities and Exchange laws to increase the maximum number change is consistent with the Commission, 450 Fifth Street, N.W., of directors on DTC’s board from fifteen requirements of Section 17A(b)(3)(F) 3 of Washington, D.C. 20549. Copies of the to twenty and to increase the current the Act and the rules and regulations submission, all subsequent membership of DTC’s board from fifteen thereunder in that the proposal should amendments, all written statements to seventeen directors. 2 The Commission has modified the text of the 3 15 U.S.C. 78s(b)(3)(A)(ii). 5 17 CFR 200.30–3(a)12. summaries submitted by DTC. 4 17 CFR 240.19b-4(e)(1991). 1 15 U.S.C. 78s(b)(1). 3 15 U.S.C. 78q–1(b)(3)(F). 27086 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices foster cooperation and coordination proposed rule change between the I. Description with persons engaged in the clearance Commission and any person, other than The rule change amends DTC’s and settlement of securities those that may be withheld from the current participant admissions policy to transactions. public in accordance with the permit entities that are organized in a provisions of 5 U.S.C. 552, will be (B) Self-Regulatory Organization’s country other than the United States available for inspection and copying in Statement on Burden on Competition and that are not otherwise subject to the Commission’s Public Reference U.S. federal or state regulation (‘‘non- DTC does not believe that the Room, 450 Fifth Street, N.W., U.S. entities’’) to be eligible to become proposed rule change will impose any Washington, D.C. 20549. Copies of such direct DTC participants.4 Under the rule burden on competition that is not filing will also be available for change, DTC will require that the non- necessary or appropriate in furtherance inspection and copying at the principal U.S. entity execute the standard DTC of the purposes of the Act. office of DTC. All submissions should participants agreement and enter into an (C) Self-Regulatory Organization’s refer to the file number SR–DTC–97–04 additional series of undertakings 5 and Statement on Comments on the and should be submitted by June 6, agreements that are designed to address Proposed Rule Change Received From 1997. jurisdictional concerns, sufficiency of Members, Participants, or Others It is therefore ordered, pursuant to collateral, and to assure that DTC is Section 19(b)(2) of the Act, that the provided with audited financial Written comments from DTC proposed rule change (File No. SR– information that is acceptable to DTC.6 participants have not been solicited or DTC–97–04) be, and hereby is, In connection with a non-U.S. firm received on the proposed rule change. approved. executing the participants agreement III. Date of Effectiveness of the For the Commission by the Division of and entering into such undertakings, Proposed Rule Change and Timing for Market Regulation, pursuant to delegated DTC will require appropriate opinions Commission Action authority.5 of counsel, satisfactory to DTC, that Section 17A(B)(3)(F) of the Act Margaret H. McFarland, state, among other things, that all such requires that the rules of a clearing Deputy Secretary. undertakings and agreements are legal agency must be designed to foster [FR Doc. 97–12884 Filed 5–15–97; 8:45 am] and enforceable against the non-U.S. cooperation and coordination with BILLING CODE 8010±01±M 4 In determining whether to grant access to its persons engaged in the clearance and services, DTC’s 1990 ‘‘Policy Statement on the settlement of securities transactions.4 By Admission to Participant’s’’ (‘‘1990 Policy enabling a representative of NSCC to SECURITIES AND EXCHANGE Statement’’) considers whether the applicant is serve on DTC’s board, NSCC and DTC COMMISSION subject to comprehensive U.S. federal or state regulation to be a critical factor. See Securities will be better able to coordinate their [Release No. 34±38600; International Exchange Act Release No. 28754 (January 8, 1991), activities. Such coordination may assist Release No. 1078; File No. SR±DTC±96±13] 56 FR 1548 (order approving proposed rule change both entities in fulfilling their statutory regarding 1990 Policy Statement). Such regulation mandates in a more efficient manner. Self-Regulatory Organizations; The includes, among other things, capital adequacy, financial reporting and recordkeeping, operating Thus, the Commission believes that Depository Trust Company; Order performance, and business conduct of the DTC’s proposal in consistent with Temporarily Approving a Proposed applicant. Under the 1990 Policy Statement, an Section 17A(B)(3)(F) of the Act. Rule Change Relating to the applicant not subject to state or federal regulatory DTC requests the Commission find Admission of Non-U.S. Entities as oversight generally would not have been eligible to become a participant. However, since 1990 DTC has good cause for approving the proposed Direct Depository Participants admitted a small number of non-U.S. entities as rule change prior to the thirtieth day participants if their obligations to DTC are after the date of publication of notice of May 9, 1997. guaranteed by participants deemed creditworthy by the filing. The Commission finds good On July 12, 1996, The Depository DTC. In lieu of requiring non-U.S. entities to obtain Trust Company (‘‘DTC’’) filed with the such guarantees, the rule change establishes cause exists for approving the proposed admissions criteria that will permit a well-qualified rule change prior to the thirtieth day Securities and Exchange Commission non-U.S. entity to obtain direct access to DTC’s after the date of publication of notice of (‘‘Commission’’) a proposed rule change services. To the extent that the 1990 Policy the filing because accelerated approval (File No. SR–DTC–96–13) pursuant to Statement is inconsistent with the rule change, the will permit the new directors to be Section 19(b)(1) of the Securities rule change amends the 1990 Policy Statement. 5 These undertakings and agreements include elected at a shareholder’s meeting Exchange Act of 1934 (‘‘Act’’) to irrevocably waiving all immunity from DTC’s scheduled for the middle of May. establish standards for the admission of attachment of the non-U.S. entity’s assets, non-U.S. participants.1 Notice of the submitting to the jurisdiction of a U.S. court, and IV. Solicitation of Comments proposal was published in the Federal waiving any objection to venue in a U.S. court. In Interested persons are invited to 2 addition, the non-U.S. entity must designate an Register on September 12, 1996. On agent in New York to receive service of process, submit written data, views, and May 5, 1997, DTC filed an amendment provide DTC with all regulatory filings made in the arguments concerning the foregoing. to the proposed rule change.3 No non-U.S. entity’s home country, and furnish DTC Persons making written submissions comment letters were received. For the with all financial reports or other information as should file six copies thereof with the requested by DTC, with all fiscal information reasons discussed below, the presented in U.S. dollar equivalents. The additional Secretary, Securities and Exchange Commission is temporarily approving undertakings and agreements are set forth in DTC’s Commission, 450 Fifth Street, N.W., the proposed rule change through May Policy on Admissions of Foreign Entities which is Washington, D.C. 20549. Copies of the 31, 1998. set forth in Exhibit B to DTC’s filing and is available submission, all subsequent for review and copying at the principal office of DTC and the Commission’s Public Reference Room. 5 amendments, all written statements 17 CFR 200.30–3(a)(12). 6 DTC Rules 2 and 3 set forth the basic standards with respect to the proposed rule 1 15 U.S.C. 78s(b)(1). for the admission of DTC participants. These rules change that are filed with the 2 Securities Exchange Act Release No. 37652 provide, among other things, that the admission of Commission, and all written (September 5, 1996), 61 FR 48187. a participant is subject to an applicant’s 3 Letter from Larry E. Thompson, Senior Vice demonstration that it meets reasonable standards of communications relating to the President and Deputy General Counsel, DTC, (May financial responsibility, operational capability, and 5, 1997). This amendment was technical in nature character at the time of its application and on an 4 Id. and did not require republication of notice. ongoing basis thereafter. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27087 entity and will be recognized and given to 50 percent of the entity’s net debit DTC and its participants against a firm’s effect under the laws of the United cap.9 Except for U.S. Treasury failure to settle even if there is a States and the non-U.S. entity’s home securities, securities included in the significant drop in the value of the country as appropriate. special collateral account will receive a collateral supporting a firm’s settlement The rule change also requires that the haircut of 50 percent.10 In addition, the activities. non-U.S. entity (i) Be subject to non-U.S. entity will not receive credit Accordingly, the Commission believes applicable securities or banking for the special collateral in DTC’s regulation in its home country, (ii) be in collateral monitor. Any net debit must that by requiring non-U.S. entities to (i) good standing with its home country be supported by the value of collateral Execute the standard DTC participants regulator, and (iii) if there is a central other than the special collateral. Such agreement and abide by DTC’s rules and securities depository established in the special collateral requirements are procedures, (ii) enter into the additional non-U.S. entity’s home country, be designed to help assure that DTC will undertakings, (iii) provide DTC with eligible to become a member of that not suffer a loss even if the non-U.S. opinions of counsel regarding the depository. Additionally, the rule entity fails to settle and the market foregoing, and (iv) be subject to the change requires that the home country value of the collateral supporting its net special financial conditions, the rule regulator of the non-U.S. entity have debit declines. change should assist DTC in assuring entered into a memorandum of the safeguards of securities and funds II. Discussion undertaking with the Commission to which are in its custody, control, or for share or exchange information. Section 17A 11 of the Act, among other which it is responsible. things, requires that the rules of a The rule change sets forth special The Commission is temporarily clearing agency be designed to assure financial conditions for non-U.S. approving the proposed rule change entities. The central purpose of these the safeguarding of securities and funds through May 31, 1998, so that DTC can special financial conditions is to which are in the custody or control of gain experience with its new admissions compensate for the fact that U.S. the clearing agency or for which it is authorities have limited oversight of responsible. The Commission believes standards for non-U.S. entities and the non-U.S. entities and that these entities that the rule change is consistent with unique risks posed by the settlement are subject to regulatory oversight and DTC’s obligations under this section. activities of these firms as direct DTC requirements that are different from Specifically, by requiring non-U.S. participants. Temporary approval also those of U.S. entities. As such, applicants to execute the standard should offer both the Commission and information concerning financial participants agreement, enter into DTC an opportunity to observe whether difficulties or the impending insolvency additional undertakings with DTC, and the admissions criteria, procedures, and of non-U.S. entities may not be available provide DTC with opinions of counsel additional capital and collateralization to DTC as such information is for U.S. as to these matters, the rule change requirements applicable to non-U.S. entities.7 should serve to bind non-U.S. entities to entities adequately protect DTC and its Under the special financial DTC’s rules and procedures in a manner participants, and whether any conditions, non-U.S. entities will be similar to U.S. domestic participants. adjustments are necessary. During the required to have and to maintain excess Additionally, the participants agreement temporary approval period, DTC will be net capital equal to US$5,000,000 if the and undertakings, as supported by the expected to monitor the adequacy and entity is a broker-dealer and opinions of counsel, should lessen or soundness of the rule change as US$20,000,000 if the entity is a bank.8 eliminate the negative effects that necessary in order to protect securities In addition to the standard deposit jurisdictional issues could have on and funds. requirements applicable to all DTC DTC’s exercise of its rights and remedies participants, non-U.S. entities also will against a non-U.S. entity if such entity III. Conclusion be required to deposit with or pledge to fails to settle. On the basis of the foregoing the DTC ‘‘special collateral’’ with a value To further protect DTC and its after imposing specified haircuts equal participants from the potential risks Commission finds that the proposal is posed by non-U.S. participants, the rule consistent with the requirements of the 7 Rule 17a–11 (17 CFR 240.17a–11) under the Act change limits direct participation in Act and in particular with the requires broker-dealers to give notice to the DTC to those non-U.S. entities that are requirements of Section 17A of the Act Commission and to the broker-dealers’ designated operationally capable and well- and the rules and regulations examining authority when, among other things, the broker-dealers’ net capital (i) declines below the capitalized. The rule change imposes thereunder. minimum amount required by Rule 15c3–1 (17 CFR substantial capital requirements on non- It is therefore ordered, pursuant to 240.15c3–1) under the Act or (ii) is less than 120% U.S. entities. Moreover, because each of the broker-dealer’s required minimum net Section 19(b)(2) of the Act, that the non-U.S. entity must maintain special proposed rule change (File No. SR– capital. collateral having a value equal to 50 8 DTC’s notice of the proposed rule change DTC–96–13) be and hereby is approved provided that non-U.S. entities would be required percent of its net debit cap after haircuts on a temporary basis through May 31, and will not receive credit for such to have and to maintain 1000% of the excess net 1998. capital (for broker-dealers) or the minimum equity special collateral in its collateral (for banks) required of U.S. participants. Under the monitor, the rule change should protect For the Commission, by the Division of rule change as originally proposed, the minimum Market Regulation, pursuant to delegated capital requirements for non-U.S. broker-dealers 12 and banks would have been US$5,000,000 and 9 DTC will require non-U.S. participants to authority. US$20,000,000, respectively. To avoid confusion, deposit all necessary collateral with DTC before Margaret H. McFarland, DTC amended the proposed rule change to require such participants are permitted to create a net debit that non-U.S. entities have and maintain excess net in DTC’s settlement system. Deputy Secretary. capital of US$5,000,000 if a broker-dealer and 10 Non-U.S. entities can pledge only DTC-eligible [FR Doc. 97–12887 Filed 5–15–97; 8:45 am] securities as special collateral. Securities for which minimum equity of US$20,000,000 if a bank instead BILLING CODE 8010±01±M of basing its capital standards for non-U.S. entities the non-U.S. entity is the sole or a principal market on a multiple of the minimum capital requirements maker are not acceptable as special collateral. of U.S. broker-dealers and banks. 11 15 U.S.C. 78q–1. 12 17 CFR 200.30–3(a)(12). 27088 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

SECURITIES AND EXCHANGE toward category 2 IDBs’ ten percent and the rules and regulations COMMISSION limit. thereunder. Currently, all grandfather It is therefore ordered, pursuant to [Release No. 34±38592; File No. SR±GSCC± nonmembers are eligible for GSCC Section 19(b)(2) of the Act, that the 96±14] membership or could have their trades proposed rule change (File No. SR– submitted to GSCC’s netting system GSCC–96–14) be and hereby is Self-Regulatory Organizations; through an affiliated netting member. approved. Government Securities Clearing The proposed rule change eliminates For the Commission by the Division of Corporation; Order Approving a the grandfather list. As a result, category Market Regulation, pursuant to delegated Proposed Rule Change to Eliminate 2 IDBs, which do virtually all of the authority.6 Grandfather Privileges brokered transactions with the current Margaret H. McFarland, grandfathered nonmembers, will have to Deputy Secretary. May 9, 1997. trade with the formerly grandfathered [FR Doc. 97–12825 Filed 5–15–97; 8:45 am] On December 19, 1996, the firms that do not join GSCC’s netting BILLING CODE 8010±01±M Government Securities Clearing system under the category 2 IDB’s Corporation (‘‘GSCC’’) filed with the authority to engage in ten percent of its Securities and Exchange Commission trading activity with nonmember firms. SECURITIES AND EXCHANGE (‘‘Commission’’) a proposed rule change Category 1 IDBs will be prohibited from COMMISSION (File No. SR–GSCC–96–14) pursuant to doing any netting eligible activity with [Release No. 34±38603; File No. SR±GSCC± Section 19(b)(1) of the Securities a formerly grandfathered firm that does 1 96±12] Exchange Act of 1934 (‘‘Act’’). Notice not join GSCC’s netting system. of the proposal was published in the Self-Regulatory Organizations; 2 II. Discussion Federal Register on February 25, 1997. Government Securities Clearing No comment letters were received. For Section 17A(b)(3)(F) 5 of the Act Corporation; Order Approving a the reasons discussed below, the requires that the rules of a clearing Proposed Rule Change Relating to Commission is approving the proposed agency be designed to assure the Interdealer Broker Repurchase rule change. safeguarding of securities and funds Agreement Transactions I. Description which are in the custody or control of the clearing agency or for which it is May 9, 1997. Effective June 30, 1997, the proposed responsible. The Commission believes On November 21, 1996, the rule change eliminates the list of that GSCC’s proposed rule change is Government Securities Clearing grandfather non-members. GSCC consistent with GSCC’s obligations Corporation (‘‘GSCC’’) filed with the established the grandfather list in May under the Act because eliminating the Securities and Exchange Commission 1993, when GSCC created category 1 grandfather list ends the additional (‘‘Commission’’) a proposed rule change IDBs and category 2 interdealer broker exposure to GSCC that the trading by (File No. SR–GSCC–96–12) pursuant to netting members (‘‘IDB’’) and placed the IDBs with grandfather nonmembers Section 19(b)(1) of the Securities limitations on their trading activity with creates. Exchange Act of 1934 (‘‘Act’’).1 On firms that were not members of GSCC’s December 3, 1996, GSCC filed with the 3 Specifically, these trades expose netting system. GSCC restricted GSCC to greater risks than trades Commission an amendment to the category 1 IDBs to trading only with between an IDB and a netting member proposed rule change. Notice of the GSCC netting members and limited to because trades with a grandfather proposal was published in the Federal ten percent the trading activity of nonmember are not eligible for netting Register on February 20, 1997.2 No category 2 IDBs with nonmember firms. by GSCC. As a result, when an IDB has comment letters were received. For the At that time, GSCC decided to allow offsetting trades with a netting member reasons discussed below, the IDBs to continue to trade with certain and with a grandfather nonmember, Commission is approving the proposed nonmember firms (‘‘grandfather only the trade with the netting member rule change. nonmembers’’) that historically have will be netted thereby leaving the IDB I. Description had access to the IDB’s screens and that instead of a grandfathered firm with a Generally, interdealer brokered GSCC has identified on its grandfather position. The traditional role of IDBs is 4 (‘‘IDB’’) submit data to GSCC on list. Accordingly, category 1 IDBs to net out of every transaction. GSCC’s corresponding repo transactions entered would continue to trade with the system reflects this role. (For example, into with two non-IDB counterparties grandfather nonmembers and trades IDBs have lower net capital with the intent of maintaining a flat between category 2 IDBs and requirements.) As a result, an IDB with position (i.e., the IDB’s deliver grandfathered firms did not count a position presents a greater risk to obligations are equal to its receive GSCC. By reducing the risks to GSCC, 1 obligations). Thus, the IDB does not 15 U.S.C. 78s(b)(1). the proposed rule change enables GSCC 2 Securities Exchange Act Release No. 38302 have margin or clearing fund to better assure the safeguarding of (February 18, 1997), 62 FR 8475. consequences from the trades at GSCC. 3 securities and funds which are in its Securities Exchange Act Release No. 32722 However, when one non-IDB (August 5, 1993), 58 FR 42993 (order approving custody or control. establishment of new membership categories). counterparty fails to submit in a timely 4 The grandfather list includes the following III. Conclusion or accurate fashion data related to the firms: On the basis of the foregoing, the transaction, the IDB’s trade with the Aubrey G. Lanston & Co., Inc. Commission finds that the proposal is non-submitting counterparty will not The Nikko Securities Co., Ltd. (Tokyo) consistent with the requirements of the compare and will not enter GSCC’s Nikko Europe PLC (London) Act and in particular with the Nomura International Inc. (Tokyo) 6 17 CFR 200.30–3(a)(12). Nomura Securities Co., Ltd. (Tokyo) requirements of Section 17A of the Act 1 15 U.S.C. 78s(b)(1). Nomura International PLC (London) 2 Securities Exchange Act Release No. 38287 Daiwa Europe Ltd. (London) 5 15 U.S.C. 78q–1(b)(3)(F). (February 13, 1997), 62 FR 8068. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27089 netting system. If the corresponding the clearing agency or for which it is ‘‘Act’’),1 notice is hereby given that on repo submission compares and enters responsible. Without this amendment, a March 11, 1997, the Government the net, the IDB will have a net non-IDB that has failed to submit trade Securities Clearing Corporation settlement position and may incur data as required by GSCC rules would (‘‘GSCC’’) filed with the Securities and clearing fund and funds-only settlement not be required to pay the related Exchange Commission (‘‘Commission’’) assessments.3 clearing fund and funds-only settlement the proposed rule change as described The proposed rule change amends obligations. Instead, these obligations in Items I, II, and III below, which items Rule 19, which sets forth special would fall upon the IDB. Because of have been prepared by GSCC. The provisions for brokers repo transactions, their traditional role, IDBs tend to have Commission is publishing this notice to by adding Section 3. Section 3 reaffirms fewer financial resources to pay these solicit comments on the proposed rule the obligation of a non-IDB netting obligations. The amendment is an effort change from interested persons. member to submit in a timely and to place the financial obligations I. Self-Regulatory Organization’s accurate manner to GSCC or to another associated with a trade on the proper Statement of the Terms of Substance of registered or exempted clearing agency party. By collecting funds from the party the Proposed Rule Change data on all of its brokered repo that represents the real settlement risk transactions.4 Section 3 also provides (i.e., the non-IDB party), the proposal The proposed rule change consists of that if a non-IDB member fails without helps to safeguard the securities and modifications to GSCC’s rules to allow good cause to submit data on a brokered funds in the custody or control of GSCC. the mitigation of risk arising from the repo transaction in a timely or accurate In addition, without this proposal, netting and guaranteed settlement of off- manner, GSCC may treat the transaction non-IDBs do not have an incentive to the-market transactions. as compared based on the data submit data in a timely fashion because failure to submit data results in clearing II. Self-Regulatory Organization’s submission received from the Statement of the Purpose of, and counterparty IDB for purposes of fund and funds-only settlement obligations not being assessed to them. Statutory Basis for the Proposed Rule assessing clearing fund deposits and Change funds-only settlement payments. Prior By ensuring that the non-IDBs will be to GSCC’s assessing clearing fund and required to collateralize their risks In its filing with the Commission, funds-only settlement consequence to a whether or not they submit data, the GSCC included statements concerning non-IDB netting member that has failed amendment removes any incentive to the purpose of and basis for the to submit such trade data in a timely fail to fulfill data submission proposed rule change and discussed any and accurate manner, GSCC would obligations. Thus, the proposal comments it received on the proposed attempt to contact (e.g., by telephone) as promotes the prompt and accurate rule change. The text of these statements promptly as possible such non-IDB clearance and settlement of securities may be examined at the places specified netting member in order to confirm the transactions. in Item IV below. GSCC has prepared accuracy of the data submitted by its III. Conclusion summaries, set forth in sections (A), (B), IDB netting member counterparty. If the and (C) below, of the most significant On the basis of the foregoing, the aspects of such statements.2 lack of comparison arose because of Commission finds that the proposal is operational or other problems on the consistent with the requirements of (A) Self-Regulatory Organization’s part of the IDB party and the non-IDB Section 17A(b)(3)(F) of the Act and the Statement of the Purpose of, and netting member therefore does not know rules and regulations thereunder. It is Statutory Basis for, the Proposed Rule the trade, GSCC would not assess therefore ordered, pursuant to section Change margin consequences against the non- 19(b)(2) of the Act, that the proposed IDB netting member. GSCC’s fulfillment of its basic rule change (File No. SR–GSCC–96–12) mission, which is to ensure that the II. Discussion be, and hereby is approved. overall settlement process for the Section 17A(b)(3)(F) 5 of the Act For the Commission by the Division of Government securities industry never provides that the rules of a clearing Market Regulation, pursuant to delegate fails, has been based on the belief that authority.6 agency be designed to promote the it is best to be as inclusive as possible prompt and accurate clearance and Margaret H. McFarland, with regard to the transactions entered settlement of securities transactions and Deputy Secretary. into by its members. This makes it less to assure the safeguarding of securities [FR Doc. 97–12883 Filed 5–15–97; 8:45 am] likely that the failure of an industry and funds in the custody or control of BILLING CODE 8010±01±M participant will have a chain reaction effect and lead to the failure of other 3 The funds-only settlement assessment is participants and the settlement process designed to collateralize a member’s net cash SECURITIES AND EXCHANGE in general. payment obligations to GSCC. COMMISSION Because of this philosophy, GSCC has 4 GSCC rules currently require that repo netting avoided to the extent possible members submit in a timely manner data on all [Release No. 34±38601; File No. SR±GSCC± eligible repo transactions either to GSCC or to 97±01] establishing barriers to the inclusion of another registered clearing agency or a clearing members’ trades in the netting process. agency that has been exempted from registration as Self-Regulatory Organizations; Thus, absent the potential for a member a clearing agency by the Commission. Currently, Government Securities Clearing to fail to fulfill its settlement obligations only one other registered clearing agency, Delta Clearing Corp., clears and settles repo transactions Corporation; Notice of Filing of to GSCC and have GSCC cease to act for in government securities. Typically, dealers enter Proposed Rule Change Regarding Off- it, GSCC’s rules do not provide for into a brokered transaction with the understanding The-Market Transactions limitations on a member’s ability to that such trade will be cleared and settled through submit trading activity based on its a specified clearing agency. Therefore, if the May 9, 1997. financial status or its level of overall counterparties to a repo transaction have selected Pursuant to Section 19(b)(1) of the GSCC as the clearing agency to be used, failure to submit the relevant data may be a violation of Securities Exchange Act of 1934 (the 1 15 U.S.C. 78s(b)(1). GSCC’s rules. 2 The Commission has modified the text of these 5 15 U.S.C. 78q–1(b)(3)(F). 6 17 CFR 200.30–3(a)(12). summaries. 27090 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices activity. Rather, GSCC’s approach has transaction to the remaining (i) greater than $1 million in par value been to let its margining processes be counterparty. and the natural limit on a member’s level of This approach recognizes that (ii) either one percentage point higher trading. allowing off-the market transactions into than the highest price or one percentage This approach works well because the the net has the potential to point lower than the lowest price for the clearing fund and forward margining inappropriately increase the loss that underlying security on the day of the processes are both dynamic ones. They GSCC would incur should a member submission of data on the transaction to are not set or capped at a specific level that has engaged in such transactions GSCC (with such prices being obtained but are recalculated and collected daily fail and have its net settlement positions by GSCC from a third-party source such and thus, increase or decrease daily liquidated. Members not involved in the as Bloomberg Financial Services based on (1) the level of members’ off-the-market transaction should not selected by GSCC for this purpose). have to share in the loss allocation that overall historical and current day’s net (3) A pattern of transactions results from its liquidation. activity with respect to clearing fund submitted by two members that if and (2) the net profitability of members’ To avoid this, GSCC is seeking the authority to amend its rules to allocate looked at as a single transaction would overall net activity with respect to constitute an off-the-market transaction. forward margin. the loss arising from an off-the-market The proposed rule changes are This inclusive approach to netting transaction done either with a netting consistent with the requirements of eligibility has led GSCC to allow trades member that subsequently is Section 17A of the Act 3 and the rules into its net that have a price that differs determined to be insolvent or with an and regulations thereunder because it significantly from the prevailing market executing firm that the insolvent would ensure that the mark-to-market price for the underlying security (‘‘off- member acts for as a submitting member exposure on the off-the-market the-market transactions’’). The large directly and entirely to the insolvent transaction not be inappropriately majority of the off-the-market member’s counterparty. 2. Not pass through to the credit side passed through to a failed member’s transactions that enter the net are not the mark-to-market amount associated counterparty and that the liquidation of independent trades per se but rather with an off-the-market transaction until an off-the-market transaction not lead to reflect exercise of options into which and unless it is paid to GSCC by the a significant loss by GSCC. the parties previously entered. GSCC debit side. (B) Self-Regulatory Organization’s continuously monitors its receipt of data The revision to the loss allocation Statement on Burden on Competition on off-the-market transactions. For process addresses the inequity of how monitoring purposes, GSCC considers that process applies to a failed member GSCC does not believe that the trades that are greater than $1 million in that has engaged in off-the-market proposed rule change will have an value and that traded at a price that is transactions. However, it would expose impact or impose a burden on more than one percentage point away GSCC to the risk that the failed competition. from GSCC’s system price as off-the- member’s counterparty also defaults on market trades. its settlement obligations to GSCC after (C) Self-Regulatory Organization’s The submission by netting members that member has received the benefit of Statement on Comments on the to GSCC of data on an off-the-market the off-the-market transaction through Proposed Rule Change Received From transaction is of particular concern if the funds-settlement process. If that Members, Participants, or Others done on the day before the scheduled happens, then the allocation of loss still settlement date of the transaction or if Written comments relating to the effectively reverts back to the other proposed rule change have not yet been the data is submitted earlier than on the members that were not involved in the day before scheduled settlement date solicited or received. Members will be off-the-market transaction. notified of the rule change filing and but is not compared until that date Thus, as a complement to the first because it presents GSCC with exposure comments will be solicited by an proposed, GSCC is seeking the ability to Important Notice. GSCC will notify the that it has not had the opportunity to ensure that the mark-to-market exposure appropriately assess and margin. As Commission of any written comments on the off-the-market transaction not be received by GSCC. noted above, most of the off-the-market inappropriately passed through to a transactions submitted to GSCC are failed member’s counterparty. GSCC III. Date of Effectiveness of the options exercises, and ordinarily, an would do this by amending its rules and Proposed Rule Change and Timing for option is settled on the business day its operational procedures to provide Commission Action after the day on which it is exercised. that if the mark-to-market amount As a partial solution to this problem, Within thirty-five days of the date of associated with an off-the-market publication of this notice in the Federal GSCC intends in the future to provide transaction is not paid to GSCC by the a comprehensive set of comparison, Register or within such longer period (i) debit side on the morning of the as the Commission may designate up to netting, settlement, and risk business day following the submission management services for options on ninety days of such date if it finds such of the trade (i.e., the debit side fails longer period to be appropriate and Government securities. As a more before it has satisfied its funds immediate measure, GSCC is seeking publishes its reasons for so finding or settlement obligation), the market (ii) as to which the self-regulatory authority to take the following two- amount will not be paid by GSCC to the pronged approach to the problem of off- organizations consents, the Commission credit side. In other words, GSCC will will: the-market transactions. not pass through the profit on an off-the- (A) by order approve rule proposed 1. Continue to allow off-the-market market transaction until and unless it such change or trades into the net thus keeping them has received that profit amount. eligible for netting, novation, and GSCC is proposing as the definition of (B) institute proceedings to determine guaranteed settlement but change the an off-the-market transaction any of the whether the proposed rule change loss allocation process so as to allocate following: should be disapproved. all of any loss resulting from the (1) An options exercise. liquidation of the off-the-market (2) A single transaction that is: 3 15 U.S.C. 78q–1. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27091

IV. Solicitation of Comments rule change.3 No comment letters were It is therefore ordered, pursuant to Interested persons are invited to received. For the reasons discussed Section 19(b)(2) of the Act, that the submit written data, views, and below, the Commission is approving the proposed rule change (File No. SR– arguments concerning the foregoing. proposed rule change. MBSCC–96–08) be, and hereby is, Persons making written submissions I. Description approved. should file six copies thereof with the Unlike other clearing agencies, For the Commission by the Division of Secretary, Securities and Exchange MBSCC’s rules did not contain specific Market Regulation, pursuant to delegated Commission, 450 Fifth Street N.W., 6 language stating that MBSCC has a lien authority. Washington, D.C. 20549. Copies of this on all property placed into its Margaret H. McFarland, submission, all subsequent possession by its participants.4 Deputy Secretary. amendments, all written statements However, MBSCC has stated that it [FR Doc. 97–12826 Filed 5–15–97; 8:45 am] with respects to the proposed rule always intended to have such a lien. BILLING CODE 8010±01±M change that are filed with the The proposed rule change modifies Commission, and all written MBSCC’s rules to explicitly state that communications relating to the MBSCC has a lien on all property placed SECURITIES AND EXCHANGE proposed rule change between the in its possession by its participants. COMMISSION Commission and any person, other than The proposed rule change also revises those that may be withheld from the MBSCC’s rules to clarify that any cash public in accordance with provisions of [Release No. 34±38594; File No. SR±MCC± received with respect to deposits to 97±01] 5 U.S.C. 552, will be available for MBSCC’s participants fund from and inspection and copying in the not yet distributed to a participant is Commission’s Public Reference Room in Self-Regulatory Organizations; available to MBSCC for satisfaction of Midwest Clearing Corporation; Notice Washington, D.C. Copies of such filing participant liabilities. will also be available for inspection and of Filing and Immediate Effectiveness copying at the principal office of GSCC. II. Discussion of a Proposed Rule Change Relating to the Return of Sponsored Account All submissions should refer to the File Section 17A(b)(3)(F) 5 of the Act Fund Deposits No. SR–GSCC–97–01 and should be requires that the rules of a clearing submitted by June 6, 1997. agency be designed to promote the May 9, 1997. For the Commission by the Division of prompt and accurate clearance and Market Regulation, pursuant to delegated settlement of securities transactions. Pursuant to Section 19(b)(1) of the authority. The Commission believes that the Securities Exchange Act of 1934 1 Margaret H. McFarland, proposed rule change is consistent with (‘‘Act’’), notice is hereby given that on Deputy Secretary. MBSCC’s obligations under the Act March 27, 1997, Midwest Clearing Corporation, (‘‘MCC’’) filed with the [FR Doc. 97–12893 Filed 5–15–97; 8:45 am] because the proposed rule change adds Securities and Exchange Commission BILLING CODE 8010±01±M language providing MBSCC with assurances that, in the event one of its (‘‘Commission’’) the proposed rule participants fails to discharge its change as described in Items I, II, and SECURITIES AND EXCHANGE liabilities, MBSCC will have a lien on III below, which items have been COMMISSION the participant’s property in MBSCC’s prepared primarily by MCC. The possession. Therefore, MBSCC can Commission is publishing this notice to [Release No. 34±38595; File No. SR± solicit comments from interested MBSCC±96±08] utilize the participant’s cash or securities subject to the lien to cover the persons on the proposed rule change. Self-Regulatory Organizations; MBS participant’s unpaid obligations to I. Self-Regulatory Organization’s Clearing Corporation; Order Approving MBSCC. As a result, MBSCC is in a Statement of the Terms of Substance of a Proposed Rule Change Relating to better position to protect itself and its the Proposed Rule Change Liens on Participants' Property participants from a defaulting participant. The purpose of the proposed rule May 9, 1997. III. Conclusion change is to adopt a form of indemnity On November 20, 1996, MBS Clearing agreement in accordance with Article Corporation (‘‘MBSCC’’) filed with the On the basis of the foregoing, the XI, Rule 2, Section 11 of MCC’s rules. Securities and Exchange Commission Commission finds that the proposal is (‘‘Commission’’) a proposed rule change consistent with the requirements of the II. Self-Regulatory Organization’s (File No. SR–MBSCC–96–08) pursuant Act and in particular with the Statement of the Purpose of, and to Section 19(b)(1) of the Securities requirements of Section 17A of the Act Statutory Basis for, the Proposed Rule Exchange Act of 1934 (‘‘Act’’) 1 to and the rules and regulations Change explicitly state that MBSCC has a lien thereunder. on all property placed in its possession In its filing with the Commission, by its participants. On January 3, 1997, 3 The amendment was technical in nature and MCC included statements concerning and on January 14, 1997, MBSCC filed therefore did not require republication of the notice. the purpose of and basis for the 4 amendments to the proposed rule For example, the rules of the National Securities proposed rule change and discussed any Clearing Corporation (‘‘NSCC’’) and the comments it received on the proposed change. Notice of the proposal was International Securities Clearing Corporation published in the Federal Register on (‘‘ISCC’’) provide NSCC and ISCC with liens on rule change. The text of these statements February 26, 1997.2 On April 10, 1997, property placed in their possession by their may be examined at the places specified MBSCC again amended the proposed participants. The language contained in the present in Item IV below. MCC has prepared proposed rule change is substantially similar to the summaries, set forth in sections A, B, language contained in NSCC’s and ISCC’s 1 15 U.S.C. 78s(b)(1). respective rules. NSCC Rule 18, Section 2(f) and 6 2 Securities Exchange Act Release No. 38314 ISCC Rule 18, Section 3. 17 CFR 200.30–3(a)(12). (February 19, 1997), 62 FR 8809. 5 15 U.S.C. 78q–1(b)(3)(F). 1 15 U.S.C. 78s(b)(1). 27092 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices and C below, of the most significant participant may choose the method by safeguarding of securities and funds aspects of such statements.2 which to protect MCC from potential which are in MCC’s custody or control losses. One method is by entering into or for which MCC is responsible. A. Self-Regulatory Organization’s a form of indemnity agreement Statement of the Purpose of, and B. Self-Regulatory Organization’s acceptable to MCC. Statutory Basis for, the Proposed Rule Statement on Burden on Competition The purpose of the proposed rule Change change is to adopt an acceptable form of MCC does not believe that the On January 5, 1996, the Commission indemnity agreement.5 Under the form proposed rule change will impose any approved a proposed rule change filed of indemnity agreement, a sponsored burden on competition. by MCC relating to its withdrawal from participant agrees to indemnify and C. Self-Regulatory Organization’s the securities clearance and settlement hold MCC and its officers, directors, and Statement on comments on the business in conjunction with an certain other personnel harmless from Proposed Rule Change Received From agreement with the National Securities any loss (including attorneys’ fees) Members, Participants or Others Clearing Corporation (‘‘NSCC’’).3 Under caused by the sponsored participant. the agreement, MCC became an NSCC The sponsored participant also agrees to MCC has neither solicited nor member and agreed to sponsor at NSCC indemnify MCC, its officers, and certain received written comments on the certain floor members and member other personnel for other losses that proposed rule change. organizations (‘‘sponsored could be charged against the sponsored III. Date of Effectiveness of the participants’’) of MCC’s parent account fund generally to the same, or Proposed Rule Change and Timing for corporation, the Chicago Stock in certain cases, a lesser extent, than if Commission Action Exchange (‘‘CHX’’). The purpose of the sponsored participant had not The foregoing rule change has become sponsoring participants was to provide received its deposit back. effective pursuant to Section 19(b)(3) specialists, market makers, and floor Pursuant to the form of indemnity (A)(i) 7 of the Act and pursuant to Rule brokers of CHX that are not members of agreement, the amount owing for these 19b–4(e)(1) 8 promulgated thereunder a registered clearing agency (other than other losses (i) Will not exceed the because the proposal constitutes a stated MCC) with access to the services of a amount the sponsored participant had policy, practice, or interpretation with registered clearing agency. As of January on deposit at the time of the sponsored respect to the meaning, administration, 21, 1997, MCC had 33 sponsored participant’s withdrawal from MCC and or enforcement of an existing rule of participants. (ii) will not be applicable if the MCC. At any time within sixty days of To reduce MCC’s exposure to the underlying conduct giving rise to the loss occurred after the withdrawal. In the filing of such rule change, the sponsored participant’s trading activity, Commission may summarily abrogate Article XI, Rule 11 of MCC’s rules addition, the indemnity will cease in its entirety after four years from the date such rule change if it appears to the require sponsored participants to Commission that such action is contribute to a sponsored account fund. the indemnity is signed. While MCC believes that the form of necessary or appropriate in the public All contributions to the sponsored interest, for the protection of investors, account fund must be in cash. If MCC indemnity agreement will be deemed satisfactory in many cases, MCC still or otherwise in furtherance of the ceases to act on behalf of a sponsored purposes of the Act. participant for any reason, Article XI, reserves the right to require, in its Rule 11(h) and Article IX, Rule 2, discretion, additional indemnities and IV. Solicitation of Comments guarantees above and beyond the form Section 11 of MCC’s rules permit MCC Interested persons are invited to of indemnity agreement or to decline to to retain the sponsored participant’s submit written data, views, and accept any indemnity agreement or sponsored account fund deposit until arguments concerning the foregoing. guarantee in lieu of retaining sponsored the sponsored participant satisfies Persons making written submissions account fund deposits. This may be certain requirements.4 A sponsored should file six copies thereof with the necessary, for example, if the Secretary, Securities and Exchange 2 withdrawing sponsored participant is The Commission has modified the text of the Commission, 450 Fifth Street, N.W., summaries prepared by MCC. on the verge of bankruptcy or Washington, D.C. 20549. Copies of the 3 For a description of the agreement, refer to insolvency. submission, all subsequent Securities Exchange Act Release No. 36684 (January MCC believes that the proposed rule 5, 1996), [File No. SR–MCC–95–04] (order amendments, all written statements approving proposed rule change). change is consistent with Section 6 with respect to the proposed rule 4 17A(b)(3)(f) of the Act in that it will Article XI, Rule 11(h) states that the return of change that are filed with the sponsored account fund deposits is governed by facilitate the prompt and accurate Commission, and all written Article IX, Rule 2, Section 11. Generally, Article IX, clearance and settlement of securities communications relating to the Rule 2, Section 11 provides that whenever a transactions and will assure the sponsored participant ceases to be a participant, the proposed rule change between the amount of its contribution to the sponsored account Commission and any person, other than If the sponsored participant does not satisfy all fund must be returned to it ninety days after: those that may be withheld from the (i) All transactions open at the time it ceases to the requirements set forth in paragraph (iii) above, be a sponsored participant from which losses or MCC may retain for up to four years, the greater of: public in accordance with the payments chargeable to the sponsored participants (a) 25 percent of a sponsored participant’s average provisions of 5 U.S.C. 552, will be fund might result have been closed, sponsored account fund requirement over the available for inspection and copying in (ii) All obligations, contingent or otherwise, that twelve months immediately prior to the date the the Commission’s Public Reference are chargeable or may become chargeable against its sponsored participant ceases to be such, or contributions pursuant to MCC’s rules have been (b) $100,000 (or the Participant’s entire Section, 450 Fifth Street, N.W., satisfied or, at the discretion of MCC, have been Participants Fund deposit if the actual deposit is Washington, D.C. 20549. Copies of such deducted, and less than $100,000). filing also will be available for (iii) Either another sponsored participant has 5 A copy of the form agreement is attached as inspection and copying at the principal been substituted, with the approval of MCC, on all Exhibit A to MCC’s proposed rule change which is office of MCC. All submissions should transactions and obligations of the sponsored available for inspection and copying at the participant, or the participant has presented to MCC Commission’s Public Reference Room or through such indemnities or guarantees as MCC deems MCC. 7 15 U.S.C. 78s(b)(3)(A)(ii). satisfactory. 6 15 U.S.C. 78q–1(b)(3)(F). 8 17 CFR 240.19b–4(e)(1). Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27093 refer to File No. SR–MCC–97–01 and offering. The proposed amendment to (‘‘PMM’’) in the stock unless: (1) The should be submitted by June 6, 1997. Rule 4612(g) would only apply to secondary offering has become effective For the Commission by the Division of members that are a PMM in 80% or and the market maker has satisfied the Market Regulation, pursuant to delegated more of the securities in which they are PMM standards between the time the authority.9 registered. (Additions are italicized.) market maker registered in the security Margaret H. McFarland, * * * * * and the time the offering became Deputy Secretary. effective or (2) the market maker has NASD Rule 4612 satisfied the PMM standards for 40 [FR Doc. 97–12827 Filed 5–15–97; 8:45 am] (a)–(g) (1) No change. calendar days (‘‘Secondary Offering BILLING CODE 8010±01±M (g)(2) Notwithstanding paragraph PMM Delay Rule’’).2 This aspect of the (g)(1) above, after an offering in a stock PMM standards, which is unaffected by SECURITIES AND EXCHANGE has been publicly announced or a the waiver, until October 1, 1997, of the registration statement has been filed, no COMMISSION four quantitative PMM standards market maker may register in the stock contained in NASD Rule 4612 (a) and [Release No. 34±38611; File No. SR±NASD± as a Primary Nasdaq Market Maker (b), was first adopted because the time 97±30] unless it meets the requirements set period after secondary offerings have forth below: been announced is sensitive to short Self-Regulatory Organizations; Notice (A) For secondary offerings: selling pressure. Specifically, in these of Filing of Proposed Rule Change by (i) The secondary offering has become situations, the stock of the issuer is the National Association of Securities effective and the market maker has currently being traded and the Dealers, Inc. Relating to an satisfied the qualification criteria in the ‘‘overhang’’ on the market of the new Amendment to the NASD's Rule time period between registering in the stock coming into the market from the Governing the Eligibility of Members security and the offering become offering makes the security particularly To Become Primary Market Makers in effective; provided, however, that if the susceptible to manipulative short Issues Subject to a Secondary Offering member is a manager or co-manager of selling. The result of such short selling the underwriting syndicate for the May 12, 1997. can adversely impact the capitalization secondary offering and it is a PMM in of the issuer, particularly smaller Pursuant to Section 19(b)(1) of the 80% or more of the Nasdaq National issuers, whose securities often have less Securities Exchange Act of 1934 Market securities in which it is liquid secondary markets. Thus, Nasdaq (‘‘Act’’), 15 U.S.C. 78s(b)(1), and the registered, the member is eligible to has been and continues to be concerned National Association of Securities become a PMM in the issue prior to the with dealers entering the market after Dealers, Inc.’s (‘‘NASD’’ or effective date of the secondary offering secondary offerings have been ‘‘Association’’) Plan of Allocation and regardless of whether the member was a announced in order to take advantage of Delegation of Functions by NASD to registered market maker in the stock the market maker exemption from the Subsidiaries, notice is hereby given that before the announcement of the 1 short sale rule. on April 24, 1997, the Nasdaq Stock secondary offering; or There have been instances where Market, Inc. (‘‘Nasdaq’’) filed with the (ii) The market maker has satisfied the managers and co-managers of secondary Securities and Exchange Commission qualification criteria for 40 calendar offerings that have not previously been (‘‘Commission’’ or ‘‘SEC’’) the proposed days. registered in the issue have been rule change as described in Items I, II, (g)(2)(B)–(h) No change precluded from becoming a PMM in the and III below, which Items have been * * * * * issue prior to the effective date of the prepared by Nasdaq. The Commission is secondary offering, however. publishing this notice to solicit II. Self-Regulatory Organization’s Statement of the Purpose of, and Accordingly, because of the inherent comments on the proposed rule change commitment of managers and co- from interested persons. Statutory Basis for, the Proposed Rule Change managers to the issues that they I. Self-Regulatory Organization’s underwrite as well as the additional Statement of the Terms of Substance of In its filing with the Commission, liquidity that these members can the Proposed Rule Change Nasdaq included statements concerning provide, Nasdaq believes it would be the purpose of and basis for the appropriate for managers and co- Nasdaq proposes to amend NASD proposed rule change and discussed any Rule 4612(g) to permit a member who is comments it received on the proposed 2 The PMM standards are used to determine the a manager or co-manager of a secondary rule change. The text of these statements eligibility of market makers to an exemption from offering to be eligible to become a may be examined at the places specified the NASD’s short-sale rule. Previously, a market Primary Nasdaq Market Maker (‘‘PMM’’) in Item IV below. Nasdaq has prepared maker was required to satisfy at least two of the in that issue prior to the effective date following four quantitative standards to be a PMM: summaries, set forth in Sections A, B, (1) The market maker must be at the best bid or best of the secondary offering regardless of and C below, of the most significant offer as shown on Nasdaq no less than 35 percent whether the member was a registered aspects of such statements. of the time; (2) the market maker must maintain a market maker in the stock before the spread no greater than 102 percent of the average announcement of the secondary A. Self-Regulatory Organization’s dealer spread; (3) no more than 50 percent of the Statement of the Purpose of, and market maker’s quotation updates may occur without being accompanied by a trade execution of 9 17 CFR 200.30–3(a)(12). Statutory Basis for, the Proposed Rule at least one unit of trading; or (4) the market maker 1 The NASD filed an amendment (‘‘Amendment Change executes 11⁄2 times its ‘‘proportionate’’ volume in No. 1’’) clarifying footnote 3 to say that a firm is the stock. See NASD Rule 4612 (a) and (b). Because not precluded from being a manager or co-manager Presently, NASD Rule 4612(g)(2)(A) of changes to market maker quotation and trading of a secondary offering if it is not a PMM in 80% provides that unless a market maker is activity since implementation of the SEC’s Order or more of the stocks in which it makes a market. registered in a security prior to the time Handling Rules, the Commission approved an See Letter from Thomas R. Gira, Associate General a secondary offering in that stock has NASD proposal to waive the PMM standards until Counsel, the Nasdaq Stock Market, Inc., to October 1, 1997, to afford Nasdaq an opportunity Katherine England, Assistant Director, Office of been publicly announced or a to develop new PMM standards. See Securities Market Supervision, Division of Market Regulation, registration statement has beef filed, it Exchange Act Release No. 38294 (February 14, Commission, dated May 7, 1997. cannot become a Primary Market Maker 1997), 62 FR 8289. 27094 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices managers of secondary offerings to be III. Date of Effectiveness of the SECURITIES AND EXCHANGE eligible to register as PMMs in such Proposed Rule Change and Timing for COMMISSION issues before the secondary offering is Commission Action effective. The proposed amendment to [Release No. 34±38610; File No. SR±NASD± 97±31] Rule 4612(g) would only apply to Within 35 days of the date of members that are a PMM in 80% or publication of this notice in the Federal Register or within such longer period (i) Self-Regulatory Organizations; Notice more of the securities in which they are of Filing of Proposed Rule Change by as the Commission may designate up to registered, however the National Association of Securities 90 days of such date if it finds such Dealers, Inc., Relating to an Nasdaq believes the proposed rule longer period to be appropriate and change is consistent with Section Amendment to the NASD's Rule publishes its reasons for so finding or Governing Market Maker Registration 15A(b)(6) of the Act. Section 15A(b)(6) (ii) as to which the NASD consents, the requires that the rules of a national Commission will: May 12, 1997. securities association be designed to Pursuant to Section 19(b)(1) of the prevent fraudulent and manipulative A. By order approve such proposed rule change, or Securities Exchange Act of 1934 acts and practices, to promote just and (‘‘Act’’), 15 U.S.C. 78s(b)(1), and the equitable principles of trade, to foster B. Institute proceedings to determine National Association of Securities cooperation and coordination with whether the proposed rule change Dealers, Inc.’s (‘‘NASD’’ or persons engaged in regulating, clearing, should be disapproved. ‘‘Association’’) Plan of Allocation and settling, processing information with IV. Solicitation of Comments Delegation of Functions by NASD to respect to, and facilitating transactions Subsidiaries, notice is hereby given that in securities, to remove impediments to Interested persons are invited to on April 24, 1997, The Nasdaq Stock and perfect the mechanism of a free and submit written data, views, and Market, Inc. (‘‘Nasdaq’’) filed with the open market and a national market arguments concerning the foregoing. Securities and Exchange Commission system and in general to protect Persons making written submissions (‘‘Commission’’ or ‘‘SEC’’) the proposed investors and the public interest. should file six copies thereof with the rule change as described in Items I, II, Specifically, by permitting managers Secretary, Securities and Exchange and III below, which Items have been and co-managers of secondary offerings Commission, 450 Fifth Street, N.W., prepared by Nasdaq. The Commission is who did not previously make a market Washington, D.C. 20549. Copies of the publishing this notice to solicit in such issues to become PMMs in such submission, all subsequent comments on the proposed rule change issues prior to the effective date of the amendments, all written statements from interested persons. secondary offering, Nasdaq believes the with respect to the proposed rule I. Self-Regulatory Organization’s proposed rule change will enhance change that are filed with the Statement of the Terms of Substance of market liquidity, facilitate greater Commission, and all written the Proposed Rule Change competition among market makers, and communications relating to the Nasdaq proposes to amend NASD promote the capital formation process. proposed rule change between the Rule 4611(d) to permit managers and co- At the same time, given the inherent Commission and any person, other than managers of an underwriting syndicate commitment of managers and co- those that may be withheld from the participating in a secondary offering of managers to the stocks they underwrite, public in accordance with the a security listed and traded on Nasdaq along with the requirement that such provisions of 5 U.S.C. 552, will be to register as a market maker in such firms be a PMM in 80% or more of available for inspection and copying in issue on a same-day basis on the day of stocks in which they are registered the Commission’s Public Reference the secondary offering. (Additions are under the proposal,3 Nasdaq does not Room. Copies of such filing will also be italicized; deletions are bracketed.) believe the proposal will compromise available for inspection and copying at * * * * * the regulatory purposes underlying the the principal office of the NASD. All ‘‘Secondary Offering PMM Delay Rule.’’ submissions should refer to file number NASD Rule 4611 B. Self-Regulatory Organization’s SR–NASD–97–30 and should be (a)–(c) No change. (d) A Nasdaq market maker may Statement on Burden on Competition submitted by June 6, 1997. For the Commission, by the Division of become registered in an issue already Nasdaq believes that the proposed Market Regulation, pursuant to delegated included in Nasdaq by entering a rule change will not result in any authority. (17 CFR 200.30–3(a)(1) (1989)). registration request via a Nasdaq burden on competition that is not Margaret H. McFarland, terminal. If registration is requested in an issue that has been included in necessary or appropriate in furtherance Deputy Secretary. of the purposes of the Act. Nasdaq for more than five (5) days, and [FR Doc. 97–12888 Filed 5–15–97; 8:45 am] the requirements of paragraph (b) above C. Self-Regulatory Organization’s BILLING CODE 8010±01±M are satisfied, registration shall become Statement on Comments on the effective on the day after the registration Proposed Rule Change Received from request is entered. Provided, [If] Members, Participants, or Others however, that same day registration is permissible for: Comments were neither solicited nor (1) a Nasdaq market maker, registered received. in a security that is the subject of a publicly announced merger or 3 Of course, a firm is not precluded from being a acquisition offer with another Nasdaq manager or co-manager of a secondary offering if it issue, who seeks registration in the other is not a PMM in 80% or more of the stocks in which merger or acquisition issue; [, same-day it makes a market. registration is permissible.]; and Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27095

(2) a manager or co-manager of an Rule 4611(d) to permit managers and co- (ii) as to which the NASD consents, the underwriting syndicate for a secondary managers of a secondary offering to Commission will: offering of a security on the day of the register in that issue on a same-day basis A. By order approve such proposed secondary offering of that security. on the day of the secondary offering. rule change, or (e)–(g) No change. Nasdaq believes the proposed rule B. Institute proceedings to determine * * * * * change is consistent with Section whether the proposed rule change II. Self-Regulatory Organization’s 15A(b)(6) of the Act. Section 15A(b)(6) should be disapproved. requires that the rules of a national Statement of the Purpose of, and IV. Solicitation of Comments Statutory Basis for, the Proposed Rule securities association be designed to Change prevent fraudulent and manipulative Interested persons are invited to acts and practices, to promote just and submit written data, views, and In its filing with the Commission, equitable principles of trade, to foster arguments concerning the foregoing. Nasdaq included statements concerning cooperation and coordination with Persons making written submissions the purpose of and basis for the persons engaged in regulating, clearing, should file six copies thereof with the proposed rule change and discussed any settling, processing information with Secretary, Securities and Exchange comments it received on the proposed respect to, and facilitating transactions Commission, 450 Fifth Street, N.W., rule change. The text of these statements in securities, to remove impediments to Washington, D.C. 20549. Copies of the may be examined at the places specified and perfect the mechanism of a free and submission, all subsequent in Item IV below. Nasdaq has prepared open market and a national market amendments, all written statements summaries, set forth in Sections A, B, system and in general to protect with respect to the proposed rule and C below, of the most significant investors and the public interest. change that are filed with the aspects of such statements. Specifically, by permitting managers Commission, and all written A. Self-Regulatory Organization’s and co-managers of secondary offerings communications relating to the Statement of the Purpose of, and to become registered market makers in proposed rule change between the Statutory Basis for, the Proposed Rule such issues on the day of the secondary Commission and any person, other than Change offering, Nasdaq believes the proposal those that may be withheld from the NASD Rule 4611(d) provides that an will enhance the liquidity and stability public in accordance with the NASD member may register as a Nasdaq of the market, facilitate greater market provisions of 5 U.S.C. 552, will be market maker in an issue by entering a maker competition, and promote the available for inspection and copying in registration request ‘‘on-line’’ via a capital formation process by enabling the Commission’s Public Reference Nasdaq terminal. For issues that have managers and co-managers of secondary Room. Copies of such filing will also be been trading on Nasdaq for more than offerings to better manage their risks available for inspection and copying at five days, however, ‘‘on-line’’ associated with the offering. At the same the principal office of the NASD. All registrations are not effective until the time, given the inherent commitment of submissions should refer to file number day after the registration request is made managers and co-managers to the stocks SR–NASD–97–31 and should be (‘‘One-Day Delay Rule’’). This one-day they underwrite, Nasdaq does not submitted by June 6, 1997. delay for market maker registration in believe that permitting managers and For the Commission, by the Division of non-IPOs is designed to minimize the co-managers of secondary offerings to Market Regulation, pursuant to delegated potential for ‘‘fair weather’’ market register in such issues on a same-day authority (17 CFR 200.30–3(a)(12) (1989)). making. Specifically, the one-day delay basis on the day of the offering will Margaret H. McFarland, helps to assure that members registering compromise the regulatory purposes Deputy Secretary. as market makers are making a underlying the ‘‘One-Day Delay Rule.’’ [FR Doc. 97–12889 Filed 5–15–97; 8:45 am] legitimate commitment of their capital B. Self-Regulatory Organization’s BILLING CODE 8010±01±M to the issue for the betterment of the Statement on Burden on Competition market, not just to capture short-term trading profits during brief periods of Nasdaq believes that the proposed SECURITIES AND EXCHANGE favorable market conditions. rule change will not result in any COMMISSION While Nasdaq continues to believe burden on competition that is not that the one-day delay in market maker necessary or appropriate in furtherance [Release No. 34±38608; File No. SR±NASD± registration serves to minimize the of the purposes of the Act. 97±17] potential for ‘‘fair weather’’ market C. Self-Regulatory Organization’s makers, there have been instances Statement on Comments on the Self-Regulatory Organizations; Order where managers and co-managers of an Proposed Rule Change Received From Approving a Proposed Rule Change underwriting syndicate for a secondary Members, Participants, or Others and Amendment No. 1 Thereto by the offering have been precluded from National Association of Securities trading the issue on the day of the Comments were neither solicited nor Dealers, Inc. Relating to Fees Charged secondary offering because they did not received. for the Nasdaq Level 1 Service submit a market maker registration III. Date of Effectiveness of the request on the day before the offering. May 12, 1997. Proposed Rule Change and Timing for Accordingly, in light of the inherent On March 3, 1997, the National Commission Action commitment of managers and co- Association of Securities Dealers, Inc. managers of underwriting syndicates to Within 35 days of the date of (‘‘NASD’’) and the Nasdaq Stock Market, their issues, the need for these members publication of this notice in the Federal Inc. (‘‘Nasdaq’’) (hereinafter referred to to make a market in the stock to Register or within such longer period (i) collectively as ‘‘Nasdaq’’ or the ‘‘Nasdaq manager their risk, and the additional as the Commission may designate up to Stock Market’’) submitted to the liquidity and pricing efficiency that 90 days of such date if it finds such Securities and Exchange Commission these market makers can provide, longer period to be appropriate and (‘‘SEC’’ or ‘‘Commission’’) pursuant to Nasdaq is proposing to amend NASD publishes its reasons for so finding or Section 19(b) of the Securities Exchange 27096 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Act of 1934 (‘‘Act’’),1 and Rule 19b–4 Nasdaq proposes to increase by $1.00 [FR Doc. 97–12894 Filed 5–15–97; 8:45 am] thereunder,2 a proposed rule change to the current monthly fee for the receipt BILLING CODE 8010±01±M increase the monthly fee charged for of Nasdaq quote and trade information, Nasdaq Level 1 Service. On March 18, resulting in a $20 fee per month per 1997, the Nasdaq Stock Market filed authorized device for Level 1 Service. SECURITIES AND EXCHANGE Amendment No. 1 to the proposal.3 As noted above, the Nasdaq Level 1 COMMISSION Notice of the proposal, as amended, Service will include limit order [Release No. 34±38609; File No. SR±PCX± was published for comment and information (i.e., the best priced orders 97±14] appeared in the Federal Register on to buy and sell) and ECN prices. This March 26, 1997.4 No comment letters information provides valuable Self-Regulatory Organizations; Notice were received on the proposed rule information to investors and other of Filing and Immediate Effectiveness change. market participants and helps in price of Proposed Rule Change by the This order approves the Nasdaq discovery. This fee increase will become Pacific Exchange, Inc., Relating to proposal. effective immediately upon issuance of Name Change From SCOREX to P/ this order because over 60% of Nasdaq COAST I. Description of the Proposal securities as measured by median daily May 12, 1997. The Nasdaq Stock Market proposes to dollar volume now are subject to the 8 Pursuant to Section 19(b)(1) of the establish a fee increase for Nasdaq Level new SEC order handling rules. Nasdaq 5 believes that value of the Level 1 Securities Exchange Act of 1934 1 Service to reflect the increased value (‘‘Act’’),1 notice is hereby given that on of the data being disseminated via this Service has increased substantially since Nasdaq’s higher volume securities April 28, 1997, the Pacific Exchange, Service. Under the new SEC Order Inc. (‘‘PCX’’ or ‘‘Exchange’’) filed with 6 now are subject to the new rules. Handling Rules, Nasdaq quotations the Securities and Exchange now contain additional information that II. Discussion Commission (‘‘Commission’’) the was not previously available to The Commission finds that the proposed rule change as described in subscribers. That is, pursuant to SEC proposed rule change is consistent with Items I, II, and III below, which Items Rule 11Ac1–4,7 customer limit orders the requirements of the Act and the have been prepared by the self- are now displayed in market maker rules and regulations thereunder regulatory organization. The quotations. In addition, Nasdaq’s Level applicable to a national securities Commission is publishing this notice to 1 Service includes price information association, and, in particular, the solicit comments on the proposed rule from electronic communications requirements of Section 15A(b)(5).9 change from interested persons. networks (‘‘ECNs’’) that was not Section 15A(b)(5) requires that the rules I. Self-Regulatory Organization’s previously available through this of a national securities association Service. Thus; to reflect the increased Statement of the Terms of Substance of provide for the equitable allocation of the Proposed Rule Change value of the transparency of Nasdaq reasonable dues, fees and other charges quotes under these new rules and the among members and issuers and other The Exchange is proposing to amend price discovery information available in persons using any facility or system its Rules to change references to its the Nasdaq Stock Market, Nasdaq which the association operates or electronic equity order routing and believes that the fee for such service controls. The Commission believes that execution system, from ‘‘SCOREX’’ to should be increased. the increased fee for Nasdaq Level 1 ‘‘P/COAST.’’ The text of the proposed Service is reasonable and results in an rule change is attached as Exhibit A to 1 15 U.S.C. 78s(b)(1). equitable allocation of the costs the rule filing. 2 17 CFR 240.19b–4. associated with gathering and 3 In Amendment No. 1, Nasdaq clarifies that the II. Self-Regulatory Organization’s filing is made on behalf of the NASD and the disseminating the additional Statement of the Purpose of, and Nasdaq Stock Market, Inc. Amendment No. 1 also information required as a result of Statutory Basis for, the Proposed Rule includes additional discussion regarding the implementation of the new Order Change statutory basis for the fee increase for Nasdaq Level Handling Rules. Accordingly, the 1 Service. Finally, Amendment No,. 1 corrects In its filing with the Commission, the several typographical errors in the original filing. Commission finds that the Nasdaq’s proposal is appropriate and consistent self-regulatory organization included See letter form Eugene A. Lopez, Assistant General statements concerning the purpose of Counsel, Office of General Counsel (‘‘OGC’’), with the Act. Nasdaq, to Michael Walinskas, Senior Special It is therefore ordered, pursuant to and basis for the proposed rule change Counsel, Office of Market Supervision (‘‘OMS’’), Section 19(b)(2) of the Act,10 that the and discussed any comments it received Division of Market Regulation (‘‘Division’’), proposed rule change (SR–NASD–97– on the proposed rule change. The text Commission, dated March 17, 1997 (‘‘Amendment of these statements may be examined at No. 1’’). 17) is approved. 4 See Securities Exchange Act Release No. 38417 the places specified in Item IV below. For the Commission, by the Division of The self-regulatory organization has (March 18, 1997), 62 FR 14487 (March 26, 1997). Market Regulation, pursuant to delegated 5 This service includes the following data: (1) authority.11 prepared summaries, set forth in inside bid/ask quotations calculated for securities Sections A, B, and C below, of the most listed on The Nasdaq Stock Market and securities significant aspects of such statements. quoted on thee OTC Bulletin Board (‘‘OTCBB’’) 8 Telephone conversation between Eugene A. Service; (2) the individual quotations or indications Lopez, Assistant General Counsel, OGC, Nasdaq, A. Self-Regulatory Organization’s of interest of broker/dealers utilizing the OTCBB and James T. McHale, Special Counsel, OMS, service; and (3) last sale information on securities Division, Commission, on May 8, 1997. As Statement of the Purpose of, and classified as designated securities in the Rule 4630, originally proposed, Nasdaq was to delay Statutory Basis for, the Proposed Rule 4640, and 4650 Series and securities classified as implementation of the fee increase until the latter Change over-the-counter equity securities in the Rule 6600 of April 1, 1997, or such time when more than half Series. See NASD Rule 7010(a). of Nasdaq securities as measured by median daily 1. Purpose 6 dollar volume are subject to the Order Handling See Securities Exchange Act Release No. During 1996, the Exchange phased out 37619A (September 6, 1996), 61 FR 48290 Rules. (September 12, 1996) (0rder Handling Rules 9 15 U.S.C. 78o–3(b)(5). its former electronic equity order Adopting Release). 10 15 U.S.C. 78s(b)(2). 7 17 CFR 240.11Ac1–4. 11 17 CFR 200.30–3(a)(12). 1 15 U.S.C. 78s(b)(1). Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27097 routing and execution system known as communications relating to the II. Self-Regulatory Organization’s SCOREX 2 and concurrently, phased in proposed rule change between the Statement of the Purpose of, and and upgraded its new system, known as Commission and any person, other than Statutory Basis for, the Proposed Rule P/COAST.3 Accordingly, the Exchange those that may be withheld from the Change is proposing to replace all references to public in accordance with the In its filing with the Commission, PTC ‘‘SCOREX’’ in the Exchange’s Rules provisions of 5 U.S.C. 552, will be included statements concerning the with references to ‘‘P/COAST.’’ available for inspection and copying at purpose of and basis for the proposed 2. Statutory Basis the Commission’s Public Reference rule change and discussed any Section, 450 Fifth Street, N.W., comments it received on the proposed The proposed rule change is Washington, D.C. 20549. Copies of such rule change. The text of these statements consistent with Section 6(b) of the Act 4 filing also will be available for may be examined at the places specified in that it is designed to promote just and in Item IV below. PTC has prepared equitable principles of trade. inspection and copying at the principal office of the Pacific Exchange. All summaries, set forth in sections A, B, B. Self-Regulatory Organization’s submissions should refer to File No. and C below, of the most significant 2 Statement on Burden on Competition SR–PCX–97–14 and should be aspects of such statements. The Exchange does not believe that submitted by June 6, 1997. A. Self-Regulatory Organization’s proposed rule change will impose any For the Commission, by the Division of Statement of the Purpose of, and the burden on competition. Market Regulation, pursuant to delegated Statutory Basis for, the Proposed Rule Change C. Self-Regulatory Organization’s authority.7 Statement on Comments on the Margaret H. McFarland, The purpose of the proposed rule Proposed Rule Change Received From Deputy Secretary. change is to amend PTC’s rules to permit PTC to enter into limited cross- Members, Participants, or Others [FR Doc. 97–12891 Filed 5–15–97; 8:45 am] guarantee agreements contain a The Exchange has neither solicited BILLING CODE 8010±01±M guarantee from one clearing agency to nor received written comments on the another clearing agency that can be proposed rule change. invoked in the event of a default of a SECURITIES AND EXCHANGE III. Date of Effectiveness of the common member. The guarantee COMMISSION Proposed Rule Change and Timing for provides that the resources of a Commission Action defaulting common member remaining [Release No. 34±38604; File No. SR±PTC± after its obligations to the guaranteeing The foregoing rule change is 97±01] concerned solely with the clearing agency have been satisfied will be used to satisfy its obligations that administration of the Exchange and, Self-Regulatory Organizations; remain unsatisfied at the other clearing therefore, has become effective pursuant Participants Trust Company; Notice of agency. The guarantee is limited to the to Section 19(b)(3)(A)(iii) of the Act 5 Filing and Order Granting Accelerated amount of a defaulting common and subparagraph (e) of Rule 19b–4 Approval of a Proposed Rule Change member’s resources remaining at the thereunder.6 Relating to Limited Cross-Guarantee At any time within 60 days of the guaranteeing clearing agency. Generally, limited cross-guarantee filing of the proposed rule change, the Agreements agreements may be beneficial to the Commission may summarily abrogate May 9, 1997. clearing agency because amounts such rule change if it appears to the available under limited cross-guarantee Commission that such action is Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 agreements may be applied to satisfy or necessary or appropriate in the public reduce unpaid obligations of the interest, for the protection of investors, (‘‘Act’’),1 notice is hereby given that on February 11, 1997, the Participants defaulting participant. With regard to or otherwise in furtherance of the PTC, these amounts may reduce charges Trust Company (‘‘PTC’’) filed with the purposes of the Act. against the participants fund or amounts Securities and Exchange Commission IV. Solicitation of Comments borrowed from other participants or (‘‘Commission’’) the proposed rule third party lenders or allocations of Interested persons are invited to change (File No. SR–PTC–97–01) as submit written data, views, and losses to the original counterparties of a described in items I and II below, which defaulting participant under PTC’s arguments concerning the foregoing. items have been prepared primarily by rules. The benefits generally accruing to Persons making written submissions PTC. The Commission is publishing this the clearing agencies from a limited should file six copies thereof with the notice and order to solicit comments on cross-guarantee agreement are Secretary, Securities and Exchange the proposed rule change from illustrated by the following example: Commission, 450 Fifth Street, N.W., interested persons. Participant A, a common participant of Washington, D.C. 20549. Copies of the clearing agency 1 and clearing agency 2, submission, all subsequent I. Self-Regulatory Organization’s declares bankruptcy. Upon insolvency, amendments, all written statements Statement of the Terms of Substance of participant A owes clearing agency 1 with respect to the proposed rule the Proposed Rule Change $10 million and clearing agency 2 owes change that are filed with the participant A $7 million. In the absence Commission, and all written The purpose of the proposed rule change is to amend PTC’s rules to of an inter-clearing agency limited cross-guarantee agreement, clearing 2 permit PTC to enter into limited cross- Securities Communication Order Routing and agency 2 would be obligated to pay $7 Execution System. guarantee agreements with other 3 million to participant A’s bankruptcy Pacific Computerized Order Access Securities clearing organizations. System. estate and clearing agency 1 would have 4 15 U.S.C. 78f(b). 5 15 U.S.C. 78s(b)(3)(A). 7 17 CFR 200.30–3(a)(12). 2 The Commission has modified the text of the 6 17 CFR 240.19b–4. 1 15 U.S.C. 78s(b)(1). summaries prepared by PTC. 27098 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices a claim for $10 million against with persons engaged in the clearance that by entering into such cross- participant A’s bankruptcy estate as a and settlement of securities guarantee agreements, PTC and the general creditor with no assurance as to transactions. The staff of the Board of other clearing agencies can mitigate the the extent of recovery. However, an Governors of the Federal Reserve systemic risks posed to them and to the effective cross-guarantee arrangement System (‘‘Board of Governors’’) has national clearance and settlement would obligate clearing agency 2 to pay concurred with the Commission’s system that arises as a result of a clearing agency 1 an amount equal to granting of accelerated approval.4 defaulting member. participant A’s $7 million receivable (B) Self-Regulatory Organization’s The Commission finds good cause for from clearing agency 2 thereby reducing Statement on Burden on Competition approving the proposed rule change clearing agency 1’s net exposure from prior to the thirtieth day after $10 million to $3 million. This PTC does not believe that the publication of the notice of filing approach would enable clearing agency proposed rule change imposes any because accelerated approval will allow 1 to secure earlier payment and would burden on competition. PTC to immediately participate in a allow clearing agency 2 to fulfill its (C) Self-Regulatory Organization’s limited cross-guarantee agreement with obligations without making an actual Statement on Comments on the MBSCC thereby allowing both PTC and payment to participant A’s bankruptcy Proposed Rule Change Received From MBSCC to benefit from the reduction of estate. Members, Participants, or Others risk that results from this type of PTC currently intends to enter into a arrangement. limited cross-guarantee agreement with PTC has not solicited and does not MBS Clearing Corporation (‘‘MBSCC’’), intend to solicit comments on this IV. Solicitation of Comments a clearing agency registered under the proposed rule change. PTC has not Act. At a later date, PTC may determine received any unsolicited written Interested persons are invited to to enter into limited cross-guarantee comments from participants or other submit written data, views, and agreements with other clearing interested parties. arguments concerning the foregoing. organizations, subject to authorization III. Date of Effectiveness of the Persons making written submissions by PTC’s Board of Directors. Proposed Rule Change and Timing for should file six copies thereof with the In order to allow PTC to enter into Commission Action Secretary, Securities and Exchange one or more limited cross-guarantee Commission, 450 Fifth Street, N.W., agreements with other clearing Section 17A(b)(3)(F) of the Act Washington, D.C. 20549. Copies of the organizations, the proposed rule change requires that the rules of a clearing submission, all subsequent will add new Rule 9, to Article IV of agency be designed to assure the amendments, all written statements PTC’s rules to govern PTC’s limited safeguarding of securities and funds with respect to the proposed rule cross-guarantee agreements. As which are in the custody or control of change that are filed with the the clearing agency or for which it is proposed, the rule will authorize PTC to Commission, and all written responsible.5 The Commission believes enter into limited cross-guarantee communications relating to the that PTC’s rule change is consistent agreements, subject to approval of PTC’s proposed rule change between the with its obligation to assure the Board of Directors. The rule also Commission and any person, other than safeguarding of securities and funds in provides that each participant will be those that may be withheld from the its custody or control because, as the liable to PTC for any payments that PTC public in accordance with the Commission found in several recently is required to make with respect to such provisions of 5 U.S.C. 552, will be approved limited cross-guarantee participant pursuant to a limited cross- available for inspection and copying in agreements,6 PTC’s proposed limited guarantee agreement, and that the Commission’s Public Reference cross-guarantee agreement is a method securities, funds, or other property of Room, 450 Fifth Street, N.W., to reduce the risk of loss due to a the participant to which PTC has a lien, Washington, D.C. 20549. Copies of such common member’s default. filing will also be available for other than securities in the participants’ The Commission also believes the inspection and copying at the principal proprietary or agency accounts, may be rule change is consistent with PTC’s office of PTC. All submissions should applied in satisfaction of such obligation under Section 17A(b)(3)(F) to refer to the file number SR–PTC–97–01 obligation. In addition, the rule provides foster cooperation and coordination and should be submitted by June 6, that amounts received by PTC under with persons engaged in the clearance 1997. any limited cross-guarantee agreement and settlement of securities will be applied to reduce the common transactions. The Commission believes It is therefore ordered, pursuant to participant’s unpaid obligations to PTC Section 19(b)(2) of the Act, that the and assessments made in respect thereof 4 Telephone conversation between Theo Lubke, proposed rule change (File No. SR– under PTC’s rules. Board of Governors, and Jeffrey Mooney, Attorney, PTC–07–01) be, and hereby is, approved PTC believes that the proposed rule Division of Market Regulation, Commission (May 8, on an accelerated basis. change is consistent with the 1997). requirements of Section 17A of the Act 3 5 15 U.S.C. 78q–1(b)(3)(F). For the Commission by the Division of 6 and the rules and regulations Securities Exchange Act Release Nos. 37616 Market Regulation, pursuant to delegated (August 28, 1996) 61 FR 46887. [File Nos. SR– authority.7 thereunder because it is designed to MBSCC–96–02, SR–GSCC–96–03, and SR–ISCC– assure the safeguarding of securities and 96–04] (order approving proposed rule changes Margaret H. McFarland, funds in the custody or control of PTC seeking authority to enter into limited cross- Deputy Secretary. or for which it is responsible and to guarantee agreements) and 38410 (Mary 17, 1997) [FR Doc. 97–12824 Filed 5–15–97; 8:45 am] 62 FR 13931 [File No. SR–OCC–96–18] (order foster cooperation and coordination granting approval of proposed rule change to revise BILLING CODE 8010±01±M rules to include limited cross-guarantee 3 15 U.S.C. 78q–1. agreements). 7 17 CFR 200.30–3(a)(12). Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27099

SECURITIES AND EXCHANGE have signed-on the Wheel, the specialist The complete text of the proposed COMMISSION receives every fifth execution. rule change is available at the Office of At this time, the Exchange proposes to the Secretary, Phlx, and at the [Release No. 34±38606; File No. SR±Phlx± amend Advice F–24(e) to reduce the Commission.. 97±20] rotation frequency for the specialist in II. Self-Regulatory Organization’s larger crowds. Specifically, if there are, Statement of the Purpose of, and Self-Regulatory Organizations; Notice on average, five to 15 Wheel Statutory Basis for, the Proposed Rule of Filing of Proposed Rule Change and participants (including the specialist), Change Amendment No. 1 Thereto by the the specialist would receive every fifth Philadelphia Stock Exchange, Inc., execution, and if there are, on average, In its filing with the Commission, the Relating to Specialist Wheel Rotation 16 or more Wheel participants, the self-regulatory organization included Frequency specialist would receive every tenth statements concerning the purpose of an execution. Where the Wheel will be set basis for the proposed rule change and May 9, 1997. to ‘‘every tenth execution,’’ the discussed any comments it received on Pursuant to Section 19(b)(1) of the specialist’s rotation frequency will the proposed rule change. The text of Securities Exchange Act of 1934 thereafter be automatically reduced the these statements may be examined (‘‘Act’’),1 and Rule 19b–4 thereunder,2 from every tenth execution to a normal, at the places specified in Item IV below. notice is hereby given that on April 24, consecutive rotation, when the number The self-regulatory organization has 1997, the Philadelphia Stock Exchange, of signed-on Wheel participants prepared summaries, set forth in section Inc. (‘‘Phlx’’ or ‘‘Exchange’’) filed with becomes less than ten. Thus, where A, B, and C below, of the most the Securities and Exchange there were 16 or more Wheel significant aspects of such statements. Commission (‘‘SEC’’ or ‘‘Commission’’) participants on average, once only nine A. Self-Regulatory Organization’s the proposed rule change as described participants are signed-on, the specialist Statement of the Purpose of, and in Items I, II, and III below, which Items rotation frequency drops to a normal Statutory Basis for, the Proposed Rule have been prepared by the self- rotation. In contrast, in trading crowds Change regulatory organization. On May 9, averaging five to 15 Wheel participants, The Exchange’s Wheel provisions 1997, the Phlx submitted Amendment the specialist rotation would be every were approved by the Commission in 3 No. 1 to the proposed rule change. The fifth execution, including where there 1994 as Advice F–24.5 The purpose of Commission is publishing this notice to are nine Wheel participants; if this the Wheel is to increase the efficiency solicit comments on the proposed rule crowd dropped to three Wheel and liquidity of order execution through change from interested persons. participants, the specialist would AUTO–X by including all floor traders receive a normal rotation (every fourth I. Self-Regulatory Organization’s in the automated assignment of contra- execution). Statement of the Terms of Substance of parties to incoming AUTO–X orders. the Proposed Rule Change The average number of Wheel Previously, only the specialist could be participants would be determined, in the automatic contra-side participant to The Phlx proposes to amend Floor accordance with procedures established AUTO–X trades, with ROT participation Procedure Advice (‘‘Advice’’) F–24, by the Exchange, upon implementation requiring manual intervention by the AUTO–X Contra-Party Participation (the of this proposal, and adjusted thereafter specialist. The Wheel is intended to ‘‘Wheel’’), regarding Wheel rotations to by request from a participant on that make AUTO–X more efficient, as contra- the specialist. The Wheel is an Wheel (except where adjusted side participation will be assigned automated mechanism for assigning automatically under this proposal, as automatically, and no longer entered floor traders (i.e., specialists and explained above). Specialist Wheel manually. The Wheel is also intended to registered options traders (‘‘ROTs’’)), on rotation frequency would otherwise promote liquidity by including ROTs, as a rotating basis, as contra-side carry over from day-to-day. Adjustments opposed to solely Specialists, as a participants to AUTO–X orders. AUTO– would become effective as soon as contra-side to AUTO–X orders. X is the automatic execution feature of practicable the following trading day The floor-wide roll-out of the Wheel the Exchange’s Automated Options (allowing staff time to count, input and was completed the week of April 21, Market (‘‘AUTOM’’) system,4 which activate a different rotation level). The 1997. In November, 1996, the Exchange provides customers with automatic Exchange may establish procedures and filed a proposed rule change to rotate executions of eligible option orders at limitations in order to reasonably the Wheel in a two-five-ten lot rotation, displayed markets. Currently, the Wheel process such requests without impairing depending on the size of the AUTO–X allocates the first trade of every day to Wheel operations, based on the guarantee.6 As a result of that proposal, the specialist. Thereafter, if four or less availability of regulatory/surveillance experience and input from the ROTs are participating on the Wheel, and systems staff, and with due regard continued roll-out and an in-depth the specialist participates in a normal for prevailing market conditions. review by the sub-committee and rotation. However, if five or more ROTs The Exchange also proposes to adopt committee processes, an additional a new provision into advice F–24(e) change to the Wheel procedures is 1 15 U.S.C. 78x(b)(1). permitting the Options Committee (or proposed at this time. The proposed 2 17 CFR 240.19b–4. its designees) to establish a larger change to the specialist wheel rotation 3 See Letter from Philip H. Becker, Senior Vice minimum Wheel rotation increment frequency is intended to address the President and Chief Regulatory Officer, Phlx to than the current two-five-ten lot rotation comments and concerns of the Michael Walinskas, Senior Special Counsel, Division of Market Regulation, SEC, dated May 8, dependent upon the AUTO–X guarantee membership, including improving the 1997 (‘‘Amendment No. 1’’). In Amendment No. 1, in that issue, if requested by the the Phlx designated File No. SR–Phlx–97–20 be specialist and Wheel participants. Any 5 See Securities Exchange Act Release No. 35033 submitted pursuant to Section 19(b)(2) of the Act, such larger rotation cannot exceed ten (November 30, 1994), 59 FR 63152 (December 7, rather than pursuant to Section 19(b)(3)(A), as 1994) (SR–Phlx–94–32). originally requested. contracts, such that this provision 6 See Securities Exchange Act Release No. 37977 4 AUTOM is an electronic order routing and would permit rotations of three—ten (November 25, 1994), 59 FR 63899 (December 2, delivery system for option orders. contracts in specific issues. 1994) (SR-Phlx-94–32). 27100 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices efficiency of the Wheel and eliminating provision should improve Wheel arguments concerning the foregoing. a disproportionate allotment to the efficiency by recognizing that the Persons making written submissions specialist in larger crowds. This trading patterns and dynamics of should file six copies thereof with the proposal specifically addresses the issue trading crowds differ extensively across Secretary, Securities and Exchange of specialist rotation frequency raised by the options floor. Commission, 450 Fifth Street, NW, commenters on the aforementioned The Exchange notes that this proposal Washington, DC 20549. Copies of the proposed rule change.7 does not affect the price or time of submission, all subsequent Specifically, Advice F–24(e) is AUTO–X executions. AUTO–X trades amendments, all written statements proposed to be amended such that the receive an automatic execution with with respect to the proposed rule specialist would receive every tenth immediate reporting, and the Wheel change that are filed with the execution, if there are 16 or more Wheel determines only the identity of the Commission, and all written participants in a particular issue. As contra-side participant, as opposed to communications relating to the stated above, the purpose of this change the process, time of price of the actual proposed rule change between the is to more equitably allocate Wheel execution. Commission and any person, other than participation in larger crowds. The For these reasons, the Exchange those that may be withheld from the Exchange notes that a greater believes the proposed rule change is public in accordance with the participation level for specialists in consistent with Section 6 of the Act 8 in provisions of 5 U.S.C. 552, will be smaller crowds is currently applicable general, and in particular, with Section available for inspection and copying in 9 pursuant to Rule 1014(g)(ii) and (iii), the 6(b)(5), in that it is designed to the Commission’s Public Reference enhanced specialist participation promote just and equitable principles of Section, 450 Fifth Street, NW, provisions. trade, remove impediments to and Washington, DC 20549. Copies of such The Exchange is also proposing to perfect the mechanism of a free and filing will also be available for enable the Options Committee to open market and a national market inspection and copying at the principal establish a different rotation increment system, and does not permit unfair office of the Phlx. All submissions not to exceed ten contracts. Currently, discrimination between customers, should refer to File No. SR–Phlx–97–20 as explained above, the Wheel rotates in issuers, brokers and dealers, by more and should be submitted by June 6, different increments, depending upon fairly allocating Wheel trades to 1997. the size of the AUTO–X guarantee in specialist in larger crowds. that issue. For instance, where the For the Commission by the Division of B. Self-Regulatory Organization’s AUTO–X guarantee is for one to ten Market Regulation, pursuant to delegated Statement on Burden on Competition 10 contracts, the Wheel rotates in two lot authority. increments, meaning a ten lot would be The Phlx does not believe that the Margaret H. McFarland, divided in two lots to five Wheel proposed rule change will impose any Deputy Secretary. participants. Where the AUTO–X inappropriate burden on competition. [FR Doc. 97–12882 Filed 5–15–97; 8:45 am] guarantee is 11–25 contracts, the Wheel C. Self-Regulatory Organization’s BILLING CODE 8010±01±M rotates in five lot increments, and where Statement on Comments on the the guarantee exceeds 25 contracts (up Proposed Rule Change Received From SECURITIES AND EXCHANGE to the maximum permissible 50 Members, Participants or Others contracts), the Wheel rotates in ten lot COMMISSION increments. At this time, the Exchange Although no written comments were proposes to allow the Wheel to rotate in either solicited or received specifically [Release No. 34±38615; International Series an increment larger than permissible on this proposal, the Exchange received Release No. 1079; File No. SR±ISCC±96± under the current framework, but no a petition dated January 20, 1997 05] greater than ten contracts. The Options generally requesting changes to the Committee may determine to allow a Wheel. Self-Regulatory Organizations; differing rotation, if requested by the III. Date of Effectiveness of the International Securities Clearing Specialist and wheel participants, and Proposed Rule Change and Timing for Corporation; Notice of Filing of a following adequate notice to the trading Commission Action Proposed Rule Change Relating to floor. Election of Directors The purpose of this provision is to Within 35 days of the publication of May 12, 1997. improve the efficiency of the Wheel by this notice in the Federal Register or allowing a greater rotation increment, within such longer period (i) As the Pursuant to Section 19(b)(1) of the meaning fewer participants and reports Commission may designate up to 90 Securities Exchange Act of 1934 generated, in specific situations. Certain days of such date if it finds such longer (‘‘Act’’), 1 notice is hereby given that on options may be subject to a lower, ten period to be appropriate and publishes October 11, 1996, the International contract guarantee due to the high its reasons for so finding or (ii) as which Securities Clearing Corporation the self-regulatory organization volatility associated with the underlying (‘‘ISCC’’) filed with the Securities and consents, the Commission will: security(ies), yet, due to heavy volume, Exchange Commission (‘‘Commission’’) (A) By order approve the proposed and on October 17, 1996, December 11, warrant a larger, more efficient wheel rule change, or rotation increment. Also, very small ((B) Institute proceedings to 1996, March 21, 1997, and May 8, 1997, trading crowds (with few Wheel determine whether the proposed rule filed amendments to the proposed rule participants) may request a larger change should be disapproved. change (File No. SR–ISCC–96–05) as rotation increment to reduce the number described in Items I, II, and III below, of executions received by each IV. Solicitation of Comments which items have been prepared participant, preferring to accept larger Interested persons are invited to primarily by ISCC. The Commission is but more infrequent execution reports. submit written data, views and publishing this notice to solicit The Exchange believes that this 8 15 U.S.C. 78f. 10 17 CFR 200.30–3(a)(12). 7 See SR-Phlx-96–49. 9 15 U.S.C. 78f(b)(5). 1 15 U.S.C. 78s(b)(1). Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27101 comments on the proposed rule change continued to appoint ISCC’s entire return their ballots to the Secretary at from interested persons. board. least fifteen days prior to the annual The proposed rule change retains the meeting. NSCC will then vote its shares I. Self-Regulatory Organization’s process of the selection of directors by in favor of the nominees selected by the Statement of the Terms of Substance of the nominating committee, but the participants. the Proposed Rule Change nominating committee will be reduced The board of directors will also be ISCC is filing the proposed rule from seven persons to three persons reduced from twenty-two to seven change to amend its procedures for divided into two classes whose terms directors of which two will be selected election of directors. would expire on a staggered basis every by NSCC. The NSCC directors will serve two years. Beginning in 1998, at least II. Self-Regulatory Organization’s one year terms. The other five directors fifteen business days prior to the Statement of the Purpose of and will be divided into three classes and regularly scheduled board meeting, Statutory Basis for, the Proposed Rule their terms will expire on a staggered which is (i) closest in time to the Change basis. ISCC believes that the reduced upcoming annual meeting of size of its board of directors and In its filing with the Commission, shareholders and (ii) at least ninety days nominating committee is more suitable ISCC included statements concerning before such annual meeting, the given ISCC’s relatively small number of the purpose of, and basis for the nominating committee will submit by participants (forth-four as of September proposed rule change and discussed any overnight mail or by telefax its list of 30, 1996). Furthermore, ISCC believes comments it received on the proposed nominees to fill the nominating that because its board will no longer be rule change. The text of these statements committee positions whose terms are selected by NSCC upon approval of the may be examined at the places specified expiring immediately following such changes proposed herein, there will no in Item IV below. ISCC has prepared annual meeting (i.e., for the nominating longer be a need for ISCC to receive an summaries, set forth in sections (A), (B), committee that will serve for the next exemption from the fair representation and (C) below, of the most significant year’s election).5 The Secretary will requirement. 2 aspects of such statements. include such list in the materials sent to The proposed rule change is (A) Self-Regulatory Organization’s the directors in connection with such consistent with the requirements of the Statement of the Purpose of, and board meeting. Act and the rules and regulations At the board meeting, the board may Statutory Basis for, the Proposed Rule thereunder. In particular, the proposed nominate individuals for one or more Change rule change is consistent with Section vacancies on the nominating committee. 17A(b)(3)(F) of the Act 6 because it The purpose of the proposed rule is The board must notify the Secretary of enables ISCC to comply with Section to modify ISCC’s by-laws and to adopt any nominations within two business 17A(b)(3)(C) of the Act 7 thereby an Amended and Restated Shareholders days of the meeting by overnight mail, eliminating the need for ISCC to obtain Agreement between ISCC and the telefax, or telephone. Within three days an exemption from complying with National Securities Clearing Corporation of receipt of nominees from the board, such requirement. (‘‘NSCC’’), ISCC’s sole shareholder. the Secretary must mail a list of all ISCC’s current by-laws and shareholders nominees to each participant. (B) Self-Regulatory Organization’s agreement set forth provisions Participants have the right to Statement on Burden on Competition establishing the number and nominate candidates for the nominating ISCC does not believe that the composition of ISCC’s board as well as committee and for the board of directors proposed rule change will have an the procedures for the election of by filing with the Secretary, not less impact on or impose a burden on directors. Such provisions provide for a than sixty days prior to the date of the competition. staggered board of twenty-two directors annual meeting, a petition signed by the composed of management, shareholder, lesser of 5% of all participants or fifteen (C) Self-Regulatory Organization’s and participant directors divided into participants. If a participant petition is Statement on Comments on the four classes. Each director is nominated filed or the board nominates additional Proposed Rule Change Received From by a nominating committee consisting of candidates to the nominating Members, Participants, or Others seven members. ISCC participants have committee, the Secretary will mail, at No written comments relating to the the opportunity to nominate additional least forty-five days prior to the date of proposed rule change have been candidates for directors and the right to the annual meeting, to each participant solicited or received. ISCC will notify vote in the event that additional a ballot setting forth all of the nominees. the Commission of any written nominees are submitted by participants. Each participant is entitled to one vote comments received by ISCC. In connection with its original for each ten dollars of its average application for registration as a clearing monthly fee payable or paid by the III. Date of Effectiveness of the agency, ISCC obtained and continues to participant to ISCC during the previous Proposed Rule Change and Timing for have a temporary exemption from twelve month period. Participants must Commission Action Section 17A(b)(3)(C) of the Act,3 which Within thirty-five days of the date of exemption permits NSCC to retain members, each participant would have had publication of this notice in the Federal control over the composition of ISCC’s inordinate control of the nominations and voting. Register or within such longer period (i) board.4 Since that time, NSCC has Moreover, NSCC was interested in controlling ISCC’s board because it believed the financial risk as the Commission may designate up to it had assumed on ISCC’s behalf due to its ninety days of such date if it finds such 2 The Commission has modified these summaries. guarantee of certain ISCC obligations was 3 15 U.S.C. 78q–1 (b)(3)(C). substantial. Securities Exchange Act Release No. longer period to be appropriate and 4 At the time of its initial temporary registration, 26812 (May 12, 1989), 54 FR 21691 (order granting publishes its reasons for so finding or ISCC argued that it did not have a meaningful temporary approval of ISCC’s registration as a (ii) as to which ISCC consents, the participant base which required the protections for clearing agency). Commission will: fair representation. (ISCC had twelve participants.) 5 The nominating committee that will select ISCC believed that if only a small number of candidates for the 1998 annual meeting of participants were able to use the provisions for the shareholders will be appointed by the board of 6 15 U.S.C. 78q–1(b)(3)(F). nomination of the board and nominating committee directors. 7 15 U.S.C. 78q–1(b)(3)(C). 27102 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

(a) By order approve such proposed Department of State Public Notice 2526 DEPARTMENT OF STATE rule change or on pages 15951–15957. Please refer to [Public Notice No. 2542] (b) institute proceedings to determine the notice for more complete whether the proposed rule change information on the harmonization Shipping Coordinating Committee should be disapproved. process. The meeting will offer the Council and Associated Bodies; Notice IV. Solicitation of Comments opportunity for interested organizations of Meeting and individuals to provide information Interested persons are invited to and views for consideration in the The Shipping Coordinating submit written data, views, and development of U.S. government policy Committee (SHC) will conduct an open arguments concerning the foregoing. positions in follow-up to the above- meeting at 10:00 a.m. on Tuesday, June Persons making written submissions mentioned Federal Register notice. 3, 1997, in Room 1103, at U.S. Coast should file six copies thereof with the Guard Headquarters, 2100 Second Secretary, Securities and Exchange The date of the meeting is June 5, Street, SW., Washington, DC 20593– Commission, 450 Fifth Street, N.W., 1997. It will be held at the U.S. 0001. The purpose of the meeting is to Washington, D.C. 20549. Copies of the Department of Labor, 200 Constitution finalize preparations for the 78th submission, all subsequent Avenue, Washington, DC, in room session of the Council and the 44th amendments, all written statements S4215ABC. Use the entrance at C and Session of the Technical Cooperation with respect to the proposed rule Third Streets, NW. To facilitate entry, Committee of the International Maritime change that are filed with the please have a picture ID available and/ Organization (IMO), which are Commission, and all written or a U.S. government building pass if scheduled for June 23–27, 1997, at IMO communications relating to the applicable. The meeting will begin at Headquarters in London. At the proposed rule change between the 10:00 a.m. and is scheduled to last two meeting, discussions will focus on Commission and any person, other than hours. papers received and draft U.S. positions. the provisions of 5 U.S.C. 552, will be Among other things, the items of Participants in the meeting may available for inspection and copying in particular interest are: submit written comments as well as the Commission’s Public Reference a. Reports of the IMO committees. Section, 450 Fifth Street, N.W., speak on topics relating to harmonization of chemical classification b. Review of the IMO technical cooperation Washington, D.C. 20549. Copies of such activities. filing will also be available for and labeling systems. Representatives of c. Relations with the United Nations. inspection and copying at the principal the following agencies will participate d. Reports for World Maritime University office of ISCC. All submissions should in the meeting: The Environmental and International Maritime Law Institute. refer to the file number (ISCC–96–05) Protection Agency, Department of State, e. Work program and budget for 1998– and should be submitted by June 6, Department of Commerce, Food and 1999. 1997. Drug Administration, Department of f. Administrative and financial matters. For the Commission by the Division of Agriculture, U.S. Trade Representative, Members of the public may attend the Market Regulation, pursuant to delegated Consumer Product Safety Commission, meeting up to the seating capacity of the authority.8 Department of Transportation, room. Interested persons may seek Margaret H. McFarland, Occupational Safety and Health information by writing: Mr. Gene F. Deputy Secretary. Administration, and the National Hammel, U.S. Coast Guard Headquarters [FR Doc. 97–12892 Filed 5–15–97; 8:45 am] Institute of Environmental Health (G–CI), 2100 Second Street, SW., Room 2114, Washington, DC 20593–0001, by BILLING CODE 8010±01±M Sciences. The agenda will include an update on the progress of harmonization calling: (202) 267–2280, or by faxing: efforts, comments received in response (202) 267–4588. DEPARTMENT OF STATE to the April 3 Federal Register notice, Dated: May 6, 1997. and a review of upcoming international Russell A. LaMantia, [Public Notice 2544] meetings. Chairman, Shipping Coordinating Committee. Bureau of Oceans and International For further information, please [FR Doc. 97–12848 Filed 5–15–97; 8:45 am] Environmental and Scientific Affairs; contact Mary Frances Lowe, U.S. BILLING CODE 4710±07±M International Harmonization of Department of State, OES/ENV, Room Chemical Safety and Health 4325, 2201 C Street, NW, Washington, Information D.C., 20520, Phone: (202) 647–9278, fax: DEPARTMENT OF STATE (202) 647–5947. [Public Notice 2540] AGENCY: Bureau of Oceans and Comments in writing may be International Environmental and Preparation of Special Report on the submitted to Ms. Lowe at the address or Scientific Affairs (OES); Department of Regional Impacts of Climate Change State. fax number provided above. ACTION: Notice of a public meeting Dated: May 8, 1997. AGENCY: Bureau of Oceans and International Environmental and regarding Government Activities on Michael Metelits, Scientific Affairs, State. International Harmonization of Director, Office of Environmental Policy, ACTION: Chemical Classification and Labeling Bureau of Oceans and International Notice of the availability of draft Systems. Environmental and Scientific Affairs. report and request for comments. SUMMARY: This public meeting follows [FR Doc. 97–12861 Filed 5–15–97; 8:45 am] SUMMARY: Working Group II of the the close of the comment period on this BILLING CODE 4710±09±M Intergovernmental Panel on Climate subject on June 2, 1997. The Federal Change (IPCC) has prepared a Special Register of April 3, 1997 contained Report on the Regional Impacts of Climate Change. The IPCC Secretariat 8 17 CFR 200.30–3(a)(12). requires comments on this report from Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27103 national governments so that the 11. Tropical Monsoon Asia reviewers. The North America Chapter Secretariat can meet its obligations to 12. Synthesis (if deemed necessary) will be available by regular mail, by member governments of the IPCC. The Annexes: facsimile, or as an e-mail attachment in U.S. Government is expected to receive A. Observed Changes in Regional Climate a format that will preserve line its copy of the draft assessment for B. Simulation of Regional Climate Change numbers; figures and tables will be formal government comment on or with Global Coupled Climate Models available for viewing over the Internet, about April 30, 1997. The U.S. and Regional Modeling Techniques linked to the USGCRP Home Page: Subcommittee on Global Change C. Simulated Changes in Vegetation www.usgcrp.gov. Persons requesting Research (SGCR) is handling the Distribution mailed copies (by express mail) may be gathering of comments to be considered Public Input Process requested to provide an account number in the preparation of the formal The member countries of the IPCC to cover expenses. comments by the United States have established a timetable that ADDRESSES: Copies of individual Government. Through this notice, the includes a brief period for comments chapters can be requested by sending an SGCR is announcing the availability of from governments so that the IPCC e-mail to the report and is requesting comments Secretariat can meet its obligations for a [email protected], on the draft report by May 27, 1997 from timely completion of this Special by sending a fax to the USGCRP Office experts and interested groups and Report. The Subcommittee on Global (202–358–4103) or by sending a letter to individuals. These comments will be Change Research is responsible for the USGCRP Office (300 E St., SW., reviewed, combined, and incorporated coordinating preparation of the U.S. Code YS–1, Washington, DC 20546). as appropriate, in the process of Government response, and through this Comments should be submitted, preparing the set of official U.S. notice is seeking the views of experts preferably by e-mail, to the same e-mail comments to the IPCC. and interested groups and individuals to address SUPPLEMENTARY INFORMATION: help in the formulation of its response. ([email protected]). Comments that are provided will be A list of chapters making up the report Background reviewed, integrated, and used, as is included with this notice. The Intergovernmental Panel on appropriate, in the preparation of the FOR FURTHER INFORMATION CONTACT: Climate Change (IPCC) was jointly official U.S. comments. An information Melissa Taylor, Office of the U.S. Global established in 1988 by the United sheet providing specific requests for Change Research Program, at tel: 202– Nations Environment Programme and formatting submissions will be provided 358–1299. the World Meteorological Organization with each distribution of a chapter. In Dated: May 2, 1997. this review process, the emphasis to conduct periodic assessments of the Rafe Pomerance, should be on providing detailed state of knowledge concerning global Deputy Assistant Secretary for Environment climate change. The IPCC has formed recommendations for changes or modifications in specific chapters for and Development, Bureau of Oceans and working groups to study various aspects International Environmental and Scientific of climate change. Working Group I which the reviewer has established Affairs. expertise or interest. To be most useful, addresses the state of the science [FR Doc. 97–12895 Filed 5–15–97; 8:45 am] comments should be specific in concerning what is happening and is BILLING CODE 4710±09±M suggesting wording changes to the text projected to happen to the climate; of a particular paragraph or chapter and, Working Group II addresses the state of where appropriate, offer supporting the science concerning (i) vulnerability information and peer-reviewed TENNESSEE VALLEY AUTHORITY to and impacts of climate change and references supporting the proposed (ii) adaptation and mitigation strategies; Proposed Construction of United changes. Comments on the overall tone and Working Group III addresses the and scientific validity of the chapter and States Penitentiary, Lee Pennington state of science and understanding comments expressing agreement and Gap, Virginia concerning economics and cross-cutting disagreement with specific major points AGENCY: Tennessee Valley Authority. issues associated with climate change. in the Executive Summary of the ACTION; Issuance of record of decision. Since finishing the Second Assessment chapters are also solicited; however, Report in late 1995, the IPCC has comments without specific suggestions undertaken four Special Reports SUMMARY: This notice is provided in for changes are of limited help in accordance with the Council on (covering the regional impacts of improving the chapters. climate change, emission scenarios, Environmental Quality’s (CEQ) DATES: Comments should be received on aviation and the global atmosphere and regulations (40 CFR 1500 to 1508) and or before May 27, 1997. The deadline technology transfer) and several TVA’s implementing procedures. TVA cannot be extended because the member technical papers. has decided to adopt the preferred countries of the IPCC have established alternative in the U.S. Department of Report Outline a strict timetable for the review process Justice, Federal Bureau of Prisons’ final Foreword and the U.S. Government requires time environmental impact statement (FEIS), for development of its formal comments. ‘‘Final Environmental Impact Statement, Summary for Policymakers Distribution Process: Full copies of United States Penitentiary, Lee, 1. Introduction this report will be sent to all SGCR Pennington Gap, Virginia.’’ The FEIS 2. Africa agencies and will be available upon was made available to the public in 3. Arctic/Antarctic request to scientific reviewers and to October 1996. A Notice of Availability 4. Australasia organizations and companies with the of the FEIS was published by the 5. Europe 6. Latin America expectation that review comments will Environmental Protection Agency in the 7. Middle East/Arid Asia be provided for use in developing the Federal Register on October 25, 1996 8. North America official U.S. Government response. (61 FR 55294). The preferred alternative 9. Small Island States Copies of specific chapters will be sent is to construct and operate a high- 10. Temperate East Asia to nominated chapter coordinators and security United States Penitentiary 27104 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

(USP), a minimum-security Federal U.S. Route 58 and VA Route 638 considered to be in reasonable Prison Camp (FPC), and other related approximately eight miles (13 proximity to metropolitan areas and ancillary facilities near the town of kilometers) south of Pennington Gap. which have (or could be expected to be Pennington Gap, in central Lee County, The USP will house approximately provided with) the required utility Virginia. Related actions by Lee County, 1,000 high-security inmates, while the services at reasonable cost. The review addressed as part of the preferred FPC will house approximately 300 consisted of consultations with relevant alternative, include providing property minimum security inmates. Inmates will agencies, including the General Services and water supply and wastewater come primarily from the Mid-Atlantic Administration (GSA), the Resolution treatment facilities for the proposed and Southeastern portions of the Trust Corporation (RTC), and prison facilities. country. Other related facilities include government officials of the To stimulate economic expansion, staff training and administrative Southwestern Virginia area. Department encourage job creation, and leverage facilities, a prison industry facility, a of Defense properties declared or likely capital investment in the TVA power central utility plant, and water supply to be declared excess were included in service area, TVA has decided to and wastewater treatment facilities for the GSA consultations. No military provide a $2,000,000 loan to Lee the project. installations closed or scheduled to be County, Virginia, to assist in funding the The proposed prison facilities are closed were identified in the county’s actions related to the federal needed to relieve the critical levels of Southwestern Virginia area that prison facilities near Pennington Gap. overcrowding at the Federal Bureau of warranted consideration pursuant to the The loan will be used by Lee County to Prisons’ high-security facilities which Violent Crime Control and Law purchase a 288 acre (116 hectare) tract are extended beyond their critical limits Enforcement Act. of land for the site of the proposed and to provide space for the substantial Two facilities in Virginia are included prison and to design the water supply number of cases awaiting redesignation on the lists addressed by the Violent and sewage treatment facilities for the to high-security facilities pending Crime Control and Law Enforcement prison. This loan will provide available bedspace. The facilities are Act. Use of all or any portion of these temporary (up to 12 month term) needed even with the addition of high- military installations was considered to financing in anticipation of other federal security facilities planned for determine if their use would provide a (non-TVA) and state funding. Beaumont, Texas, and Pollock, cost-effective alternative to the acquisition of privately-owned property FOR FURTHER INFORMATION CONTACT: Louisiana. for the consideration of the proposed Linda Oxendine, Ph.D., NEPA Alternatives Considered facility. The Bureau considered these Specialist, Tennessee Valley Authority, The following alternatives were properties not suitable for Bureau use 400 West Summit Hill Drive, Mailstop considered by the Federal Bureau of and thus not reasonable alternative sites WT 8C, Knoxville, Tennessee 37902, Prisons and evaluated in the FEIS. for the proposed prison facilities. (423) 632–3440 or e-mail at These alternatives were designed to [email protected]. Alternative C: Use of Non-Federally- address comments received during the Owned Sites SUPPLEMENTARY INFORMATION: In October scoping process and to minimize 1996, the Federal Bureau of Prisons potentially adverse environmental Non-Federally-owned sites potentially released a FEIS on the proposed effects. Alternatives evaluated include available for acquisition in construction and operation of a high- the no action alternative, use of closed Southwestern Virginia and located in security United States Penitentiary or scheduled to be closed military communities which indicated a (USP), an adjacent minimum-security installations in the region pursuant to willingness to accommodate such a Federal Prison Camp (FPC), and other Section 20413 of the Violent Crime facility were identified through related ancillary facilities near the town Control and Law Enforcement Act of consultations with local government of Pennington Gap, in central Lee 1994, and six alternative non-federally officials. County, Virginia. Included in the EIS owned sites within Lee County. As Six properties were identified as were related activities by Lee County to reflected in the EIS, alternative sites potential sites for the proposed action as provide property at Pennington Gap and were screened to determine their indicated by the Final EIS. All six sites water supply and wastewater treatment suitability against the anticipated site were screened to determine their facilities for the project. In August 1996, development requirements for a suitability (See p. II–14 of the FEIS). as the Bureau was completing the FEIS, correctional facility and to identify Screening activities included visual TVA received a request from Lee County potential environmental issues to be surveys and consultations with local for a $2,000,000 Economic Development addressed. planning and development officials. Site Loan to assist in funding its actions specific reconnaissance activities related to the prison facilities. Alternative A: No-Action included visual inspection of the sites Therefore, TVA was not a cooperating The proposed prison facilities would and observations in regard to current agency in the preparation of the Federal not be constructed at any location. land uses at the sites and adjacent Bureau of Prisons EIS. In accordance Current overcrowding of high-security properties. Readily available with CEQ regulations, following the prisons within the Federal Prison documentation relating to the sites and determination that the FEIS adequately System would continue. This alternative surrounding environments was addressed TVA’s action and was still would not result simply in the assembled including master plans, generally available, TVA announced its continuation of the status quo. system utility data, environmental and decision to adopt the FEIS on March 27, Eventually, action to address present historic features, and other relevant 1997. A Notice of Adoption of the FEIS and future overcrowding in high- information. Each alternative site is was published in the Federal Register security facilities would be required. examined in detail in the draft and the by the Environmental Protection Agency FEIS. on April 4, 1997 (62 FR 16154). Alternative B: Use of Federally-Owned Based on comparison of the Lee The prison facilities will be located Sites County sites, the Pennington Gap site on an approximately 288 acre (116 The Bureau conducted a review of was chosen for more detailed review hectare) tract of land at the junction of Federally-owned sites in Virginia and identified by the Bureau as the Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27105 preferred alternative. The Bureau’s than-significant environmental impacts upon the movement of water from the selection of the Pennington Gap Site to the immediate project site and the site to the groundwater system and its was based on environmental, surrounding community while potential for impacts upon water quality engineering, and economic providing benefits to the area’s and subsidence. The Bureau will also considerations as well as the ease of economy. specify methods to control and detect regional access offered by the site and Environmental Consequences and leakage from water and sewer lines the availability of planned utility Commitments during the planning and design, improvements and other considerations. material specification, and construction The Pennington Gap project will be of such lines to avoid leakage. In Environmentally Preferred Alternative similar in scale to a light industrial park addition, the Bureau has prepared a TVA considers Alternative C, locating or secondary school. Most buildings the prison facilities at Pennington Gap, will be one-to four-story structures and conservation management plan for the to be the environmentally preferable will provide multi-purpose activity continued maintenance and protection alternative as required under 40 CFR space, with areas divided according to of the Litton Cave No. 1. The 1505.2(b). This determination is based function. Functional groupings will management plan will be implemented on the nature of the existing include administration, services, during the construction and operating environment, the need to relieve housing, religion, education, recreation, phases of the project. overcrowding at high-security facilities prison industries, and utilities. Detailed The proposed action to build the in the Mid-Atlantic and Southeastern information describing project design, facilities, in concert with other actions, portions of the country, and the construction, and operations is included will contribute substantially to the potential impacts to the physical, in the FEIS. efficient operation of the national biological, and social environments as Construction and operation of the criminal justice system. Secondary described in the EIS. The substantial proposed project is not expected to have benefits on the area’s economy will also economic investment of funds into the significant environmental impacts to the be realized. Once the USP becomes immediate project site and surrounding construction and operation of the prison operational, the annual operating budget local communities. Those communities, facilities will greatly expand the is estimated to be approximately $25 economic base of Lee County. The no including the towns of Pennington Gap million. Much of this amount can be action alternative has the least impact and Jonesville, Lee County, and the expected to flow directly into the local on the physical and biological surrounding area will benefit environments as no disturbance would economically from having the proposed economy through employee salaries, occur, but it does not address the project located in the area. Project local service contracts and the overcrowding and economic benefits. construction is estimated to cost purchases of utilities, goods and Based on cost analysis, no military approximately $90 million which can be services. The facility will rely on public property was considered to be a expected to substantially increase the utility providers for the provision of reasonable alternative. Of the alternative number of construction jobs available in water supply and wastewater treatment non-federally owned sites, the the local area. Project construction will services. Positive economic benefits will Pennington Gap site would have the also provide opportunities for local accrue to these utility providers as a least impact on the physical and companies to provide materials and result. All plans for the provision of biological environments and provide supplies for the project. services and expansion of capacities regional access and the availability of Based on environmental analysis will be fully coordinated with all planned utility improvements. described in the EIS, no significant appropriate officials. Provision of water environmental impacts are anticipated supply and wastewater treatment Basis for Decision to the area’s land use patterns, utility services to serve the proposed project TVA has decided to adopt the services, and traffic and transportation may allow indirect or secondary Pennington Gap alternative which was movements to and from the proposed development impacts in the area. identified in the Federal Bureau of site. Additionally, the project is not However, the limited development Prison’s FEIS as the preferred expected to have significant impacts on activity at the existing Lee County alternative. TVA will provide an noise, air quality, water quality, Industrial Park, given the availability of Economic Development Loan to Lee topographic conditions, aesthetics, water and wastewater treatment County in the amount of $2,000,000 to wetland conditions, and endangered facilities at the park, suggest that little, purchase the property for the project wildlife species. if any, additional development will and to design the water supply and Development of the site will require occur. Based on input from local and wastewater treatment facilities. TVA the disturbance of approximately 100 regional planning officials, any indirect bases its decision on the economic acres (40 hectares) or approximately 35 or secondary development impacts that development benefits of the project and percent of the site. The area to be may result are considered to be its less-than-significant impact on the disturbed during construction includes consistent with land use and economic environment. Economic development the more level areas of open fields and development goals and objectives of the benefits include over 300 new jobs and hedgerows located within the eastern area. approximately 150 indirect jobs for the portion of the site. This will permit the local area, with an annual payroll of more sensitive areas and habitats on the Potentially adverse direct and indirect $17.5 million of which $8.2 million site to be avoided, specifically wetlands impacts, including construction-related would represent take-home wages. on the northern portion and Litton Cave impacts will be controlled, mitigated or Additionally, the facilities will have an No. 1 to the southeast. avoided using all practicable means. All electric service capacity of 3.5 To ensure that environmental impacts plans and specifications for the design megawatts and an annual electric energy are minimized throughout the and construction of the proposed use of 16 million kilowatt-hours. construction and operation of the facilities will include protective TVA concurs with the Bureau’s project, the Bureau will conduct measures to minimize adverse affects determination that development of the additional subsurface investigations during the construction phase of the Pennington Gap site will result in less- during project design, focusing attention project. 27106 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Dated: May 8, 1997. foreign air carrier permit authorizing DEPARTMENT OF TRANSPORTATION Robert K. Johnson, Jr., AHK to engage in charter foreign air General Manager, Business Systems transportation of property and mail Federal Aviation Administration Economic Development. between a point or points in Hong Kong [FR Doc. 97–12846 Filed 5–15–97; 8:45 am] and a point or points in the United Aviation Rulemaking Advisory BILLING CODE 8120±01±P States, and to conduct other cargo Committee Meeting on Training and charters in compliance with the Qualifications Department’s Regulations. AHK AGENCY: Federal Aviation DEPARTMENT OF TRANSPORTATION respectfully requests that the permit be renewed for an additional five years. Administration (FAA), DOT. Aviation Proceedings, Agreements Docket Number: OST–97–2486. ACTION: Notice of meeting. Filed During the Week of May 9, 1997 Date Filed: May 7, 1997. The following Agreements were filed SUMMARY: The FAA is issuing this notice Due Date for Answers, Conforming with the Department of Transporatation to advise the public of a meeting of the Applications, or Motion to Modify under the provisions of 49 U.S.C. 412 Federal Aviation Administration Scope: June 4, 1997. and 414. Answers may be filed within Aviation Rulemaking Advisory 21 days of date of filing. Description: Joint Application of ALM Committee to discuss training and Docket Number: OST–97–2448. Antillean Airlines N.V. and ALM 1997 qualification issues. Date Filed: May 5, 1997. Airlines N.V., pursuant to 49 U.S.C. DATES: The meeting will be held on Parties: Members of the International Section 41403, and Subpart Q of the Air Transport Association. Regulations, requests transfer of ALM’s April 23 at 10:00 a.m. foreign air carrier permit to ALM 1997, Subject: ADDRESSES: The meeting will be held at thereby authorizing ALM 1997 to engage PTC12 MATL-Eur 0007 dated April the Regional Airlines Association, in scheduled foreign air transportation 29, 1997 Second floor, 1200 19th St. NW., of persons, property and mail between Mid Atlantic-Europe Expedited Resos Washington DC. rl–5 a point or points in the Netherlands Intended effective date: June 1, 1997. Antilles; the intermediate points Santo FOR FURTHER INFORMATION CONTACT: Ms. Domingo, Dominican Republic; Port-au- Paulette V. Twine, Regina L. Jones, (202) 267–9822, Office Prince, Haiti; and Kingston and of Rulemaking, (ARM–100) 800 Chief, Documentary Services. Montego Bay, Jamaica; and the co- Independence Avenue, SW., [FR Doc. 97–12863 Filed 5–15–97; 8:45 am] terminal points Miami, Florida; New Washington, DC 20591. BILLING CODE 4910±62±P York, New York; and San Juan, Puerto Rico, and to operate charters to and SUPPLEMENTARY INFORMATION: Pursuant from the U.S. to section 10(a)(2) of the Federal DEPARTMENT OF TRANSPORTATION Advisory Committee Act (Pub. L. 92– Docket Number: OST–97–2495. Notice of Applications for Certificates 463; 5 U.S.C. App. II), notice is hereby of Public Convenience and Necessity Date Filed: May 9, 1997. given of a meeting of the Aviation and Foreign Air Carrier Permits Filed Due Date for Answers, Conforming Rulemaking Advisory Committee Under Subpart Q During the Week Applications, or Motion to Modify (ARAC) to discuss training and Ending May 9, 1997 Scope: June 6, 1997. qualification issues. This meeting will be held April 23, 1997, at 10:00 a.m., at Description: Application of WestJet The following Applications for the Regional Airlines Association. The Airlines, Ltd., pursuant to 49 U.S.C. Certificates of Public Convenience and agenda for this meeting will include Section 41302 and Subpart Q of the Necessity and Foreign Air Carrier progress reports from The Air Carrier Permits were filed under Subpart Q of Regulations, applies for an initial foreign air carrier permit authorizing it Pilot Pay for Training Working Group, the Department of Transportation’s the Air Carrier Minimum Flight Time Procedural Regulations (See 14 CFR to engage in scheduled foreign air transportation of persons, property and Requirements Working Group, and the 302.1701 et. seq.). The due date for Air Carrier Pilot Pre-Employment Answers, Conforming Applications, or mail between a point or points in Canada and a point or points in the Screening Standards and Criteria Motions to modify Scope are set forth Working Group. below for each application. Following United States of America. WestJet also the Answer period DOT may process the requests authority to perform foreign Attendance is open to the interested application by expedited procedures. charter air transportation between a public but may be limited to the space Such procedures may consist of the point or points in Canada and a point available. The public must make adoption of a show-cause, a tentative or points in the United States of arrangements in advance to present oral order, or in appropriate cases a final America, and between a point or points statements at the meeting or may order with out further proceedings. in the United States and a point or present statements to the committee at Docket Number: OST–97–2468. points outside of either the United any time. In addition, sign and oral Date Filed: May 6, 1997. States or Canada, subject to compliance interpretation can be made available at with the Department’s procedures in Due Date for Answers, Conforming the meeting, as well as an assistive Part 212 of its Economic Regulations, 14 Applications, or Motion to Modify listening device, if requested 10 CFR Part 212. Scope: June 3, 1997. calendar days before the meeting. Description: Application of AHK Air Paulette V. Twine, Arrangements may be made by Hong Kong Limited, pursuant to 49 Chief, Documentary Services. contacting the person listed under the U.S.C. Section 40109 and Subpart Q of [FR Doc. 97–12864 Filed 5–15–97; 8:45 am] heading FOR FURTHER INFORMATION the Regulations, requests renewal of its BILLING CODE 4910±62±P CONTACT. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27107

Issued in Washington, DC, on May 12, DEPARTMENT OF TRANSPORTATION connections with local roads. 1997. Improvements to the corridor are Jean Casciano, Federal Highway Administration considered necessary to provide for the Acting Executive Director, Aviation existing and projected traffic demand, Rulemaking Advisory Committee. Environmental Impact Statement: enhance safety and improve highway Hennepin and Wright Counties, [FR Doc. 97–12923 Filed 5–15–97; 8:45 am] geometrics. An Environmental Minnesota BILLING CODE 4910±13±M Assessment will be completed for the AGENCY: Federal Highway proposed project. Administration (FHWA), DOT. Coordination has been initiated and DEPARTMENT OF TRANSPORTATION ACTION: Notice of intent to terminate will continue with appropriate Federal, EIS. State and local agencies and private Federal Aviation Administration organizations and citizens who have SUMMARY: The FHWA is issuing this previously expressed or are known to Notice of Intent To Rule on Application notice to advise the public that the have an interest in the proposed action. To Impose a Passenger Facility Charge current Environmental Impact Public meetings have been held in the (PFC) at Pellston Regional Airport of Statement (EIS) process for a proposed past and will continue to be held, with Emment County, Pellston, Michigan highway project on Trunk Highway 12 public notice given for the time and (TH 12) in Hennepin and Wright place of the meetings. To ensure that the AGENCY: Federal Aviation Counties, Minnesota is terminated. The full range of issues related to this Administration (FAA), DOT. original notice of intent for this EIS proposed action are addressed and all ACTION: Correction to the notice of intent process was published in the Federal issues identified, comments and to rule on application to impose a Register during May 1992. suggestions are invited from all Passenger Facility Charge (PFC) at FOR FURTHER INFORMATION CONTACT: interested parties. Comments or Pellston Regional Airport of Emment Cheryl Martin, Environmental Engineer, questions concerning this proposed County, Pellston, Michigan. Federal Highway Administration, action and the need for an EIS should Galtier Plaza, Box 75, 175 Fifth Street be directed to the FHWA at the address provided above. SUMMARY: This correction amends the East, Suite 500, St. Paul, Minnesota information included in the previously 55101–2901, Telephone (612) 291–6120; (Catalog of Federal Domestic Assistance published notice. or Patti Loken, Project Manager, Program Number 20.205, Highway Planning Minnesota Department of and Construction. The regulations In notice document 97–6807 on page Transportation—Metro Division, 1500 implementing Executive Order 12372 12874 in the issue of Tuesday, March West County Road B2, Roseville, regarding intergovernmental consultation on 18, 1997, in the second column under Federal programs and activities apply to this Minnesota 55113, Telephone (612) 582– program) SUPPLEMENTARY INFORMATION, the third 1293. Issued on May 8, 1997. paragraph should read as follows: SUPPLEMENTARY INFORMATION: The Stanley M. Graczyk, The following is a brief overview of FHWA, in cooperation with the the application. Minnesota Department of Project Development Engineer, Federal Highway Administration. Transportation (MnDOT), has PFC Application No.: 97–05–I–00– [FR Doc. 97–12845 Filed 5–15–97; 8:45 am] PLN. terminated the EIS process begun in 1992 to improve TH 12 in Hennepin and BILLING CODE 4910±22±M Level of the proposed PFC: $3.00. Wright Counties. The original proposed Proposed charge effective date: June project would have involved the DEPARTMENT OF TRANSPORTATION 1, 1997. reconstruction of existing TH 12 from a Proposed charge expiration date: two-lane, two-way roadway to a four- Surface Transportation Board September 1, 1997. lane, divided roadway between TH 25 in Montrose, Wright County to TH 101 [STB Docket No. AB±295 (Sub±No. 3X)] Total estimated PFC revenue: in Wayzata, Hennepin County, a $17,500.00. The Indiana Rail Road CompanyÐ distance of approximately 29 Discontinuance of Trackage Rights Brief description of proposed project: kilometers. The FHWA and MnDOT are ExemptionÐin Marion County, IN Replace Aircraft Rescue Fire Fighting no longer considering a four-lane Vehicle. upgrade because: (1) There is not The Indiana Rail Road Company sufficent funding available to build a (INRD) has filed a notice of exemption FOR FURTHER INFORMATION CONTACT: Mr. Jon B. Gilbert, Program Manager, four-lane alternative; (2) the under 49 CFR part 1152 Subpart F— Federal Aviation Administration, Metropolitan Council does not support Exempt Abandonments and Detroit Airports District Office, Willow a four-lane alternative; and (3) the Discontinuances of Trackage Rights to Run Airport, East, 8820 Beck Road, purpose and need for the project can be discontinue trackage rights over Belleville, Michigan 48111 (313) 487– met by a build alternative with lesser Consolidated Rail Corporation’s 7281. The application may be reviewed scope. A modified project is proposed to (Conrail) Indianapolis Belt Running in person at this same location. upgrade approximately 8 kilometers of Track between milepost 0.0 at North TH 12 in Hennepin County from Indianapolis, and milepost 5.3 at the Issued in Des Plaines, Illinois, on May 9, Wayzata Boulevard in Wayzata to the connection between Conrail and INRD 1997. intersection of County State Aid at Raymond Street, and over Barbara J. Jordan, Highway 6 in Orono. The proposed approximately 1.1 miles of the former Acting Manager, Planning/Programming project involves the construction of a Indianapolis Union Railway Company, Branch, Airports Division, Great Lakes new segment of two-lane, limited-assess now a portion of Conrail’s St. Louis Line Region. highway along the north side of the from approximately milepost 1.5, [FR Doc. 97–12924 Filed 5–15–97; 8:45 am] Burlington Northern Sante Fe Railroad extending through ‘‘IU’’ interlocking BILLING CODE 4910±13±M track, two interchanges and two and through the former Indianapolis 27108 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Union Station area to approximately If the verified notice contains false or 49 CFR 1152.28 and any request for trail milepost 0.4, a distance of misleading information, the exemption use/rail banking under 49 CFR 1152.29 approximately 6.4 miles in Indianapolis, is void ab initio. will be due no later than 20 days after 1 Marion County, IN. The line traverses Decided: May 13, 1997. notice of the filing of the petition for United States Postal Service Zip Codes By the Board, David M. Konschnik, exemption is published in the Federal 46202, 46204, 46208, 46221, 46222, and Director, Office of Proceedings. Register. Each trail use request must be 46225. Vernon A. Williams, accompanied by a $150 filing fee. See 49 INRD has certified that: (1) No INRD CFR 1002.2(f)(27). local traffic has moved over the line for Secretary. All filings in response to this notice at least 2 years; (2) there is no INRD [FR Doc. 97–12948 Filed 5–15–97; 8:45 am] must refer to STB Docket No. AB–477 overhead traffic on the line; (3) no BILLING CODE 4915±00±P (Sub-No. 1X) and must be sent to: (1) formal complaint filed by a user of rail Office of the Secretary, Case Control service on the line (or by a state or local Unit, Surface Transportation Board, government entity acting on behalf of DEPARTMENT OF TRANSPORTATION 1925 K Street, NW., Washington, DC such user) regarding cessation of service Surface Transportation Board 20423–0001, and (2) Thomas F. over the line either is pending with the McFarland, Jr., McFarland & Herman, 20 Surface Transportation Board (Board) or [STB Docket No. AB±477 (Sub-No. 1X)] North Wacker Drive, Suite 1330, with any U.S. District Court or has been Chicago, IL 60606–2902. decided in favor of complainant within Owensville Terminal Company, IncÐ Persons seeking further information the 2-year period; and (4) the Abandonment ExemptionÐin Edwards concerning abandonment procedures requirements at 49 CFR 1105.12 and White Counties, IL and in Gibson may contact the Board’s Office of Public (newspaper publication), and 49 CFR and Posey Counties, IN Services at (202) 565–1592 or refer to 1152.50(d)(1) (notice to governmental On April 15, 1997, Owensville the full abandonment or discontinuance agencies) have been met. Terminal Company, Inc. (OTC) filed regulations at 49 CFR part 1152. As a condition to this exemption, any Questions concerning environmental employee adversely affected by the with the Surface Transportation Board a petition under 49 U.S.C. 10502 for issues may be directed to the Board’s abandonment shall be protected under Section of Environmental Analysis at Oregon Short Line R. Co.— exemption from the provisions of 49 U.S.C. 10903 to abandon a line of (202) 565–1545. [TDD for the hearing Abandonment—Goshen, 360 I.C.C. 91 impaired is available at (202) 565–1695.] (1979). To address whether this railroad known as the Browns- Poseyville line, extending from railroad An environmental assessment (EA) (or condition adequately protects affected environmental impact statement (EIS), if employees, a petition for partial milepost 205.0 near Browns, IL, to railroad milepost 227.5 near Poseyville, necessary) prepared by the Section of revocation under 49 U.S.C. 10502(d) Environmental Analysis will be served must be filed. IN, which traverses U.S. Postal Service Zip Codes 62818, 62844, 47616, and upon all parties of record and upon any Provided no formal expression of agencies or other persons who intent to file an offer of financial 47633, a distance of 22.5 miles, in Edwards and White Counties, IL, and commented during its preparation. Any assistance (OFA) has been received, this other persons who would like to obtain exemption will be effective on June 15, Gibson and Posey Counties, IN. The line includes the stations of: Browns, MP a copy of the EA (or EIS) may contact 1997,2 unless stayed pending the Section of Environmental Analysis. reconsideration. Petitions to stay and 205.0; Grayville, MP 213.5; Griffin, MP 219.9; and Stewartsville, MP 225.4. EAs in these abandonment proceedings formal expressions of intent to file an normally will be available within 60 OFA under 49 CFR 1152.27(c)(2),3 must The line does not contain federally granted rights-of-way. Any days of the filing of the petition. The be filed by May 27, 1997. Petitions to deadline for submission of comments on reopen must be filed by June 5, 1997, documentation in the railroad’s possession will be made available the EA will generally be within 30 days with: Office of the Secretary, Case of its service. Control Unit, Surface Transportation promptly to those requesting it. The Board, 1925 K Street, NW, Washington, interest of railroad employees will be Decided: April 28, 1997. protected by Oregon Short Line R. Co.— By the Board, Vernon A. Williams, DC 20423. Secretary. A copy of any petition filed with the Abandonment—Goshen, 360 I.C.C. 91 Board should be sent to applicant’s (1979). Vernon A. Williams, representative: Charles M. Rosenberger, By issuance of this notice, the Board Secretary. 500 Water Street J150, Jacksonville, FL is instituting an exemption proceeding [FR Doc. 97–12950 Filed 5–15–97; 8:45 am] 32202. pursuant to 49 U.S.C. 10502(b). A final BILLING CODE 4915±00±P decision will be issued within 90 days 1 INRD has filed a notice of exemption to acquire (by August 1, 1997). trackage rights over Conrail’s Indianapolis Belt Any offer of financial assistance DEPARTMENT OF THE TREASURY Running Track (Belt Track) near Raymond Street, under 49 CFR 1152.27(b)(2) will be due Indianapolis, IN, at approximately milepost 5.3 and Customs Service the end of Conrail’s Belt Track at the connection no later than 10 days after service of a with the former Norfolk and Western Railway decision granting the petition for Company at approximately milepost 13.5, in The exemption. Each offer of financial Application for Recordation of Trade Indiana Rail Road Company—Trackage Rights assistance must be accompanied by the Name: ``Swiss Gold Premium Beer'' Exemption—Consolidated Rail Corporation, STB Finance Docket No. 33380. filing fee, which currently is set at $900. ACTION: Notice of Application for 2 Because this is a discontinuance proceeding and See 49 CFR 1002.2(f)(25). Recordation of Trade Name. not an abandonment, trail use/rail banking and All interested persons should be public use conditions are not appropriate. Likewise, aware that following abandonment of SUMMARY: Application has been filed no environmental or historical documentation is rail service and salvage of the line, the pursuant to section 133.12, Customs required here under 49 CFR 1105.6(c)(6). 3 Each offer of financial assistance must be line may be suitable for other public Regulations (19 CFR 133.12), for the accompanied by the filing fee, which currently is use, including interim trail use. Any recordation under section 42 of the Act set at $900. See 49 CFR 1002.2(f)(25). request for a public use condition under of July 5, 1946, as amended (15 U.S.C. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27109

1124), of the trade name ‘‘SWISS GOLD Service, room 5571, 1111 Constitution quality, utility, and clarity of the PREMIUM,’’ used by Westeinder Ltd., a Avenue NW., Washington, DC 20224. information to be collected; (d) ways to corporation organized under the laws of FOR FURTHER INFORMATION CONTACT: minimize the burden of the collection of the State of Delaware, located at 1013 Requests for additional information or information on respondents, including Centre Road, Wilmington, Delaware copies of the form and instructions through the use of automated collection 19899. should be directed to Martha R. Brinson, techniques or other forms of information The application states that the trade (202) 622–3869, Internal Revenue technology; and (e) estimates of capital name is associated with Swiss Beer. Service, room 5571, 1111 Constitution or start-up costs and costs of operation, The merchandise is manufactured in Avenue NW., Washington, DC 20224. maintenance, and purchase of services U.S. to provide information. Before final action is taken on the SUPPLEMENTARY INFORMATION: application, consideration will be given Approved: May 7, 1997. Title: Tax on Lump-Sum Garrick R. Shear, to any relevant data, views, or Distributions. arguments submitted in writing by any OMB Number: 1545–0193. IRS Reports Clearance Officer. person in opposition to the recordation Form Number: 4972. [FR Doc. 97–12928 Filed 5–15–97; 8:45 am] of this trade name. Notice of the action Abstract: Internal Revenue Code BILLING CODE 4830±01±U taken on the application for recordation section 402(e) and regulation section of this trade name will be published in 1.402(e) allow recipients of lump-sum the Federal Register. distributions from a qualified retirement DEPARTMENT OF THE TREASURY DATE: Comments must be received on or plan to figure the tax separately on the Internal Revenue Service before July 15, 1997. distributions. The tax can be computed ADDRESSES: Written comments should on the 5 or 10-year averaging method or Proposed Collection; Comment be addressed to U.S. Customs Service, by a special capital gain method. Form Request for Form 6198 Attention: Intellectual Property Rights 4972 is used to compute the separate tax Branch, 1301 Constitution Avenue, and to make a special 20 percent capital AGENCY: Internal Revenue Service (IRS), NW., (Franklin Court), Washington, D.C. gain election on lump-sum distributions Treasury. 20229. attributable to pre-1974 participation. ACTION: Notice and request for FOR FURTHER INFORMATION CONTACT: Current Actions: There are no changes comments. Delois P. Johnson, Intellectual Property being made to the form at this time. Rights Branch, 1301 Constitution Type of Review: Extension of a SUMMARY: The Department of the Avenue, NW., (Franklin Court), currently approved collection. Treasury, as part of its continuing effort Washington D.C. 20229 (202–482–6960). Affected Public: Individuals or to reduce paperwork and respondent households. burden, invites the general public and Dated: April 28, 1997. Estimated Number of Responses: other Federal agencies to take this John F. Atwood, 140,000. opportunity to comment on proposed Chief, Intellectual Property Rights Branch. Estimated Time Per Response: 2hr., 53 and/or continuing information [FR Doc. 97–12944 Filed 5–15–97; 8:45 am] min. collections, as required by the BILLING CODE 4820±02±P Estimated Total Annual Burden Paperwork Reduction Act of 1995, Hours: 403,200. Public Law 104–13 (44 U.S.C. The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is DEPARTMENT OF THE TREASURY of the collections of information covered soliciting comments concerning Form by this notice: 6198, At-Risk Limitations. Internal Revenue Service An agency may not conduct or DATES: sponsor, and a person is not required to Written comments should be Proposed Collection; Comment respond to, a collection of information received on or before July 15, 1997 to be Request for Form 4972 unless the collection of information assured of consideration. AGENCY: Internal Revenue Service (IRS), displays a valid OMB control number. ADDRESSES: Direct all written comments Treasury. Books or records relating to a collection to Garrick R. Shear, Internal Revenue ACTION: Notice and request for of information must be retained as long Service, room 5571, 1111 Constitution comments. as their contents may become material Avenue NW., Washington, DC 20224. in the administration of any internal FOR FURTHER INFORMATION CONTACT: SUMMARY: The Department of the revenue law. Generally, tax returns and Requests for additional information or Treasury, as part of its continuing effort tax return information are confidential, copies of the form and instructions to reduce paperwork and respondent as required by 26 U.S.C. 6103. should be directed to Martha R. Brinson, burden, invites the general public and (202) 622–3869, Internal Revenue Request for Comments other Federal agencies to take this Service, room 5571, 1111 Constitution opportunity to comment on proposed Comments submitted in response to Avenue NW., Washington, DC 20224. and/or continuing information this notice will be summarized and/or collections, as required by the included in the request for OMB SUPPLEMENTARY INFORMATION: Paperwork Reduction Act of 1995, approval. All comments will become a Title: At-Risk Limitations. Public Law 104–13 (44 U.S.C. matter of public record. Comments are OMB Number: 1545–0712. 3506(c)(2)(A)). Currently, the IRS is invited on: (a) Whether the collection of Form Number: 6198. soliciting comments concerning Form information is necessary for the proper Abstract: Internal Revenue Code 4972, Tax on Lump-Sum Distributions. performance of the functions of the section 465 requires taxpayers to limit DATES: Written comments should be agency, including whether the their at-risk loss to the lesser of the loss received on or before July 15, 1997 to be information shall have practical utility; or their amount at risk. Form 6198 is assured of consideration. (b) the accuracy of the agency’s estimate used by taxpayers to determine their ADDRESSES: Direct all written comments of the burden of the collection of deductible loss and by IRS to verify the to Garrick R. Shear, Internal Revenue information; (c) ways to enhance the amount deducted. 27110 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

Current Actions: There are no changes DEPARTMENT OF THE TREASURY The following paragraph applies to all being made to the form at this time. of the collections of information covered Internal Revenue Service Type of Review: Extension of a by this notice: An agency may not conduct or currently approved collection. Proposed Collection; Comment sponsor, and a person is not required to Affected Public: Business or other for- Request for Form 982 respond to, a collection of information profit organizations, individuals or AGENCY: Internal Revenue Service (IRS), unless the collection of information households, not-for-profit institutions, Treasury. displays a valid OMB control number. and farms. Books or records relating to a collection ACTION: Notice and request for of information must be retained as long Estimated Number of Responses: comments. 121,400. as their contents may become material SUMMARY: in the administration of any internal Estimated Time Per Response: 3hr., 36 The Department of the Treasury, as part of its continuing effort revenue law. Generally, tax returns and min. to reduce paperwork and respondent tax return information are confidential, Estimated Total Annual Burden burden, invites the general public and as required by 26 U.S.C. 6103. Hours: 437,040. other Federal agencies to take this Request for Comments opportunity to comment on proposed The following paragraph applies to all Comments submitted in response to and/or continuing information of the collections of information covered this notice will be summarized and/or collections, as required by the by this notice: included in the request for OMB Paperwork Reduction Act of 1995, An agency may not conduct or approval. All comments will become a Public Law 104–13 (44 U.S.C. sponsor, and a person is not required to matter of public record. 3506(c)(2)(A)). Currently, the IRS is Comments are invited on: (a) Whether respond to, a collection of information soliciting comments concerning Form unless the collection of information the collection of information is 982, Reduction of Tax Attributes Due to necessary for the proper performance of displays a valid OMB control number. Discharge of Indebtedness. Books or records relating to a collection the functions of the agency, including DATES: Written comments should be whether the information shall have of information must be retained as long received on or before July 15, 1997 to be as their contents may become material practical utility; (b) the accuracy of the assured of consideration. agency’s estimate of the burden of the in the administration of any internal ADDRESSES: Direct all written comments collection of information; (c) ways to revenue law. Generally, tax returns and to Garrick R. Shear, Internal Revenue enhance the quality, utility, and clarity tax return information are confidential, Service, room 5571, 1111 Constitution of the information to be collected; (d) as required by 26 U.S.C. 6103. Avenue NW., Washington, DC 20224. ways to minimize the burden of the Request for Comments FOR FURTHER INFORMATION CONTACT: collection of information on Requests for additional information or respondents, including through the use Comments submitted in response to copies of the form and instructions of automated collection techniques or this notice will be summarized and/or should be directed to Martha R. Brinson, other forms of information technology; included in the request for OMB (202) 622–3869, Internal Revenue and (e) estimates of capital or start-up approval. All comments will become a Service, room 5571, 1111 Constitution costs and costs of operation, matter of public record. Avenue NW., Washington, DC 20224. maintenance, and purchase of services to provide information. Comments are invited on: (a) Whether SUPPLEMENTARY INFORMATION: the collection of information is Approved: May 12, 1997. Title: Reduction of Tax Attributes Due necessary for the proper performance of Garrick R. Shear, to Discharge of Indebtedness. the functions of the agency, including IRS Reports Clearance Officer. OMB Number: 1545–0046. whether the information shall have Form Number: 982. [FR Doc. 97–12931 Filed 5–15–97; 8:45 am] practical utility; (b) the accuracy of the Abstract: Internal Revenue Code BILLING CODE 4830±01±U agency’s estimate of the burden of the section 108 allows taxpayers to exclude collection of information; (c) ways to from gross income amounts attributable DEPARTMENT OF THE TREASURY enhance the quality, utility, and clarity to discharge of indebtedness in title 11 of the information to be collected; (d) cases, insolvency, or a qualified farm Internal Revenue Service ways to minimize the burden of the indebtedness. Code section 1081(b) collection of information on allows corporations to exclude from [FI±34±94] respondents, including through the use gross income amounts attributable to Proposed Collection; Comment of automated collection techniques or certain transfers of property. The data is Request for Regulation Project other forms of information technology; used to verify adjustments to basis of and (e) estimates of capital or start-up property and reduction of tax attributes. AGENCY: Internal Revenue Service (IRS), costs and costs of operation, Current Actions: There are no changes Treasury. maintenance, and purchase of services being made to the form at this time. ACTION: Notice and request for to provide information. Type of Review: Extension of a comments. currently approved collection. Approved: May 12, 1997. Affected Public: Business or other for- SUMMARY: The Department of the Garrick R. Shear, profit organizations and individuals. Treasury, as part of its continuing effort IRS Reports Clearance Officer. Estimated Number of Responses: to reduce paperwork and respondent [FR Doc. 97–12929 Filed 5–15–97; 8:45 am] 1,000. burden, invites the general public and BILLING CODE 4830±01±U Estimated Time Per Response: 9 hrs., other Federal agencies to take this 13 min. opportunity to comment on proposed Estimated Total Annual Burden and/or continuing information Hours: 9,210. collections, as required by the Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27111

Paperwork Reduction Act of 1995, Request for Comments 3945, Internal Revenue Service, room Public Law 104–13 (44 U.S.C. Comments submitted in response to 5569, 1111 Constitution Avenue NW., 3506(c)(2)(A)). Currently, the IRS is this notice will be summarized and/or Washington, DC 20224. soliciting comments concerning an included in the request for OMB SUPPLEMENTARY INFORMATION: existing final regulation, FI–34–94 (TD approval. All comments will become a Title: Changes in Methods of 8653), Hedging Transactions by matter of public record. Comments are Accounting. Members of a Consolidated Group invited on: (a) Whether the collection of OMB Number: 1545–1541. (§§ 1.1221–2(d)(2)(iv), 1.1221–2(e)(5), information is necessary for the proper and 1.1221–2(g)(5)(ii)). Revenue Procedure Number: Revenue performance of the functions of the Procedure 97–27. DATES: Written comments should be agency, including whether the Abstract: The information requested received on or before July 15, 1997 to be information shall have practical utility; in Revenue Procedure 97–27 is required assured of consideration. (b) the accuracy of the agency’s estimate in order for the Commissioner to ADDRESSES: Direct all written comments of the burden of the collection of determine whether the taxpayer to Garrick R. Shear, Internal Revenue information; (c) ways to enhance the properly is requesting to change its Service, room 5571, 1111 Constitution quality, utility, and clarity of the method of accounting and the terms and Avenue NW., Washington, DC 20224. information to be collected; (d) ways to conditions of that change. minimize the burden of the collection of FOR FURTHER INFORMATION CONTACT: Current Actions: There are no changes information on respondents, including being made to the revenue procedure at Requests for additional information or through the use of automated collection copies of the information collection this time. techniques or other forms of information Type of Review: Extension of a should be directed to Carol Savage, technology; and (e) estimates of capital (202) 622–3945, Internal Revenue currently approved collection. or start-up costs and costs of operation, Affected Public: Business or other for- Service, room 5569, 1111 Constitution maintenance, and purchase of services Avenue NW., Washington, DC 20224. profit organizations, individuals, not- to provide information. for-profit institutions, and farms. SUPPLEMENTARY INFORMATION: Approved: May 12, 1997. Estimated Number of Respondents: 3,000. Title: Hedging Transactions by Garrick R. Shear, Estimated Time Per Respondent: 3 Members of a Consolidated Group. IRS Reports Clearance Officer. hours, 13 minutes. [FR Doc. 97–12932 Filed 5–15–97; 8:45 am] OMB Number: 1545–1480. Estimated Total Annual Burden Regulation Project Number: FI–34–94. BILLING CODE 4830±01±U Hours: 9,633. Abstract: This regulation deals with The following paragraph applies to all the character and timing of gain or loss DEPARTMENT OF THE TREASURY of the collections of information covered from certain hedging transactions by this notice: entered into by members of a Internal Revenue Service An agency may not conduct or consolidated group of corporations. The sponsor, and a person is not required to regulation applies when one member of Proposed Collection; Comment respond to, a collection of information the group hedges its own risk, hedges Request for Revenue Procedure 97±27 unless the collection of information the risk of another member, or enters displays a valid OMB control number. into a risk-shifting transaction with AGENCY: Internal Revenue Service (IRS), Books or records relating to a collection another member. Treasury. of information must be retained as long Current Actions: There is no change to ACTION: Notice and request for as their contents may become material this existing regulation. comments. in the administration of any internal revenue law. Generally, tax returns and Type of Review: Extension of a SUMMARY: The Department of the currently approved collection. Treasury, as part of its continuing effort tax return information are confidential, Affected Public: Business or other for- to reduce paperwork and respondent as required by 26 U.S.C. 6103. profit organizations. burden, invites the general public and Request for Comments Estimated Number of Respondents: other Federal agencies to take this Comments submitted in response to 17,100. opportunity to comment on proposed this notice will be summarized and/or Estimated Time Per Respondent: 4 and/or continuing information included in the request for OMB hours, 27 minutes. collections, as required by the approval. All comments will become a Estimated Total Annual Burden Paperwork Reduction Act of 1995, matter of public record. Comments are Hours: 76,050. Public Law 104–13 (44 U.S.C. invited on: (a) Whether the collection of The following paragraph applies to all 3506(c)(2)(A)). Currently, the IRS is information is necessary for the proper of the collections of information covered soliciting comments concerning performance of the functions of the by this notice: Revenue Procedure 97–27, Changes in agency, including whether the An agency may not conduct or Methods of Accounting. information shall have practical utility; sponsor, and a person is not required to DATES: Written comments should be (b) the accuracy of the agency’s estimate respond to, a collection of information received on or before July 15, 1997 to be of the burden of the collection of unless the collection of information assured of consideration. information; (c) ways to enhance the displays a valid OMB control number. ADDRESSES: Direct all written comments quality, utility, and clarity of the Books or records relating to a collection to Garrick R. Shear, Internal Revenue information to be collected; (d) ways to of information must be retained as long Service, room 5571, 1111 Constitution minimize the burden of the collection of as their contents may become material Avenue NW., Washington, DC 20224. information on respondents, including in the administration of any internal FOR FURTHER INFORMATION CONTACT: through the use of automated collection revenue law. Generally, tax returns and Requests for additional information or techniques or other forms of information tax return information are confidential, copies of the revenue procedure should technology; and (e) estimates of capital as required by 26 U.S.C. 6103. be directed to Carol Savage, (202) 622– or start-up costs and costs of operation, 27112 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices maintenance, and purchase of services Estimated Time Per Respondent: 3 opportunity to comment on proposed to provide information. minutes. and/or continuing information Approved: May 12, 1997. Estimated Total Annual Burden collections, as required by the Hours: 700. Paperwork Reduction Act of 1995, Garrick R. Shear, The following paragraph applies to all Public Law 104–13. Currently, the IRS Reports Clearance Officer. of the collections of information covered Office of Thrift Supervision within the [FR Doc. 97–12933 Filed 5–15–97; 8:45 am] by this notice: Department of the Treasury is soliciting BILLING CODE 4830±01±U An agency may not conduct or comments concerning the purchase/ sponsor, and a person is not required to transfer of assets and/or liabilities. respond to, a collection of information DATES: DEPARTMENT OF THE TREASURY Written comments should be unless the collection of information received on or before July 15, 1997 to be Internal Revenue Service displays a valid OMB control number. assured of consideration. Books or records relating to a collection ADDRESSES: Send comments to Manager, Proposed Collection; Comment of information must be retained as long Dissemination Branch, Records Request for Form 8482 as their contents may become material Management and Information Policy, in the administration of any internal Office of Thrift Supervision, 1700 G AGENCY: Internal Revenue Service (IRS), revenue law. Generally, tax returns and Street, NW., Washington, DC 20552, Treasury. tax return information are confidential, Attention 1550–0025. These ACTION: Notice and request for as required by 26 U.S.C. 6103. submissions may be hand delivered to comments. Request for Comments 1700 G Street, NW. From 9:00 a.m. to 5:00 p.m. on business days; they may be SUMMARY: The Department of the Comments submitted in response to sent by facsimile transmission to FAX Treasury, as part of its continuing effort this notice will be summarized and/or Number (202) 906–7755, or they may be to reduce paperwork and respondent included in the request for OMB sent by e-mail: burden, invites the general public and approval. All comments will become a [email protected]. Those other Federal agencies to take this matter of public record. Comments are commenting by e-mail should include opportunity to comment on proposed invited on: (a) Whether the collection of their name and telephone number. and/or continuing information information is necessary for the proper Comments over 25 pages in length collections, as required by the performance of the functions of the should be sent to FAX Number (202) Paperwork Reduction Act of 1995, agency, including whether the 906–6956. Comments will be available Public Law 104–13 (44 U.S.C. information shall have practical utility; for inspection at 1700 G Street, NW., 3506(c)(2)(A)). Currently, the IRS is (b) the accuracy of the agency’s estimate from 9:00 A.M. until 4:00 P.M. on soliciting comments concerning Form of the burden of the collection of business days. 8482, agnetic Tape of Federal Tax information; (c) ways to enhance the Copies of the Forms with instructions Deposits. quality, utility, and clarity of the are available for inspection at 1700 G DATES: Written comments should be information to be collected; (d) ways to Street, NW., from 9:00 A.M. until 4:00 received on or before July 15, 1997 to be minimize the burden of the collection of P.M. on business days or from PubliFax, assured of consideration. information on respondents, including OTS’ Fax-on-Demand system, at (202) through the use of automated collection ADDRESSES: Direct all written comments 906–5660. to Garrick R. Shear, Internal Revenue techniques or other forms of information FOR FURTHER INFORMATION CONTACT: Service, room 5571, 1111 Constitution technology; and (e) estimates of capital Requests for additional information Avenue NW., Washington, DC 20224. or start-up costs and costs of operation, should be directed to Pamela Schaar, maintenance, and purchase of services Corporate Activities Division, FOR FURTHER INFORMATION CONTACT: to provide information. Requests for additional information or Supervision, Office of Thrift copies of the form and instructions Approved: May 12, 1997. Supervision, 1700 G Street, NW., should be directed to Carol Savage, Garrick R. Shear, Washington, DC 20552, (202) 906–7205. (202) 622–3945, Internal Revenue IRS Reports Clearance Officer. SUPPLEMENTARY INFORMATION: Service, room 5569, 1111 Constitution [FR Doc. 97–12934 Filed 5–15–97; 8:45 am] Title: Purchase/Transfer of Assets Avenue NW., Washington, DC 20224. BILLING CODE 4830±01±U and/or Liabilities. SUPPLEMENTARY INFORMATION: OMB Number: 1550–0025. Form Number: OTS Forms 1584, Title: Magnetic Tape of Federal Tax DEPARTMENT OF THE TREASURY 1585, and 1589. Deposits. Abstract: This information collection Office of Thrift Supervision OMB Number: 1545–1542. provides OTS with information relating Form Number: Form 8482. Proposed Agency Information to the purchase or transfer of assets and/ Abstract: This form is used to transmit or liabilities of either the entire thrift or Federal Tax Deposit payment Collection Activities; Comment Request specific branch offices. Some of these information on magnetic tape from filings consist of notices to the OTS that authorized reporting agents and /or AGENCY: Office of Thrift Supervision, an application has been made with fiduciaries to the IRS Service Centers. Department of Treasury. another Federal financial regulator. Current Actions: There are no changes ACTION: Notice and request for Current Actions: OTS is proposing to being made to the form at this time. comments. renew this information collection Type of Review: Extension of a without revision. currently approved collection. SUMMARY: The Department of the Type of Review: Extension of an Affected Public: Business or other for- Treasury, as part of its continuing effort already approved information profit organizations. to reduce paperwork and respondent collection. Estimated Number of Respondents: burden, invites the general public and Affected Public: Business or For 14,000. other Federal agencies to take this Profit. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27113

Estimated Number of Respondents: of an information collection entitled interim use of this form through 127. ‘‘Certificate of Eligibility for Exchange September 30, 1997. Estimated Time Per Respondent: 3.24 Visitor Status (J–1 Visa)’’, under OMB Public reporting burden for this hours on average. control number 3116–0215 (emergency collection of information (Paper Work Estimated Total Annual Burden approval). This request for comment is Reduction Project: OMB No. 3116–0215) Hours: 412. being made pursuant to the Paperwork is estimated to average 30 minutes per Request for Comments Reduction Act of 1995 [Pub. L. 104–13; response. Respondents are required to 44 U.S.C. 3506(c)(2)(A)]. respond only one time, including the Comments submitted in response to The information collection activity time for reviewing instructions, this notice will be summarized and/or involved with the program is conducted searching existing data sources, included in the request for OMB pursuant to the mandate given to the gathering and maintaining the data approval. All comments will become a United States Information Agency under needed, and completing and reviewing matter of public record. Comments are the terms and conditions of the Mutual the collection of information. Send invited on: (a) Whether the collection of and Educational and Cultural Exchange comments regarding this burden information is necessary for the proper Act of 1961, Title 22 Code of Federal estimate or any other aspect of this performance of the functions of the Regulations (CFR), Section 514, collection of information, including agency, including whether the Exchange Visitor Program, Final Rule; suggestions for reducing the burden, to information shall have practical utility; and Title 8, Section 101(a)(15) of the the United States Information Agency, (b) the accuracy of the agency’s estimate Immigration and Nationality Act. M/ADD, 301 Fourth Street, S.W., of the burden of the collection of DATES: Comments are due on or before Washington, D.C. 20547; and to the information; (c) ways to enhance the June 16, 1997. Office of Information and Regulatory quality; (d) ways to minimize the COPIES: Copies of the Request for Affairs, Office of Management and burden of the collection of information Budget, New Executive Office Building, on respondents, including the use of Clearance (OMB 83–I), supporting statement, and other documents that Docket Library, Room 10202, NEOB, automated collection techniques or Washington, D.C. 205023. other forms of information technology, have been submitted to OMB for and (e) estimates of capital or start-up approval may be obtained from the Current Actions: This information costs and costs of operation, USIA Clearance Officer. Comments collection has been submitted to OMB maintenance, and purchase of services should be submitted to the Office of for the purpose of requesting a three- to provide information. Information and Regulatory Affairs of year extension and approval of revisions OMB, Attention: Desk Officer for USIA, to the form. Dated: May 13, 1997. and also to the USIA Clearance Officer. Title: ‘‘Certificate of Eligibility for Catherine C. M. Teti, FOR FURTHER INFORMATION CONTACT: Exchange Visitor Status (J–1 Visa)’’. Director, Records Management and Agency Clearance Officer, Ms. Jeannette Form Number: IAP–66–P. Information Policy. Giovetti, United States Information Abstract: This form will be used to [FR Doc. 97–12905 Filed 5–15–97; 8:45 am] Agency, M/ADD, 301 Fourth Street, electronically collect and submit BILLING CODE 6720±01±P S.W., Washington, D.C. 20547, information in a limited pilot telephone (202) 619–4408, internet environment from non-immigrant address [email protected]; and OMB exchange visitors participating in UNITED STATES INFORMATION review: Ms. Victoria Wassmer, Office of exchange visitor programs in the U.S. in AGENCY Information And Regulatory Affairs, order that INS and USIA can monitor Office of Management and Budget, New the exchange visitors nonimmigrant Submission for OMB Review; Executive Office Building, Docket Comment Request status and ensure that the exchange Library, Room 1002, NEOB, visitors do not violate the conditions AGENCY: United States Information Washington, D.C. 20503, Telephone imposed by their nonimmigrant status Agency. (202) 395–5871. while participating in an exchange ACTION: Submission for OMB review; SUPPLEMENTARY INFORMATION: An visitor program. comment request. Agency may not conduct or sponsor, Proposed Frequency of Responses: and a person is not required to respond No. of Respondents—3,000, SUMMARY: Under the provisions of the to a collection of information unless it Recordkeeping Hours—.50, Total Paperwork Reduction Act of 1995 (44 displays a currently valid OMB control Annual Burden—1,500. U.S.C. Chapter 35), this notice number. The Federal Register notice announces that the following new with a 60-day comment period soliciting Dated: May 13, 1997. information collection activity has been comments on this collection of Rose Royal, forwarded to the Office of Management information was published on March Federal Register Liaison. and Budget (OMB) for review and 13, 1997 (vol. 62, no. 49). Emergency [FR Doc. 97–12877 Filed 5–15–97; 8:45 am] comment. USIA is requesting approval approval was granted by OMB for the BILLING CODE 8230±01±M federal register May 16,1997 Friday Notice Substances andProducts;Availability; Photostability TestingofNewDrug Harmonisation; Guidelinesforthe International Conferenceon Food andDrugAdministration Services Health andHuman Department of Part II 27115 27116 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

DEPARTMENT OF HEALTH AND based harmonized technical procedures testing and will be considered in a HUMAN SERVICES for pharmaceutical development. One of separate ICH document. the goals of harmonization is to identify This guideline is an annex to that Food and Drug Administration and then reduce differences in technical guideline and describes the basic testing requirements for drug development protocol for photostability testing of [Docket No. 96D±0010] among regulatory agencies. new drug substances and products in International Conference on ICH was organized to provide an original new drug application Harmonisation; Guideline for the opportunity for tripartite harmonization submissions. Photostability Testing of New Drug initiatives to be developed with input This guideline represents the agency’s Substances and Products; Availability from both regulatory and industry current thinking on photostability representatives. FDA also seeks input testing of new drug substances and AGENCY: Food and Drug Administration, from consumer representatives and products. It does not create or confer HHS. others. ICH is concerned with any rights for or on any person and does ACTION: Notice. harmonization of technical not operate to bind FDA or the public. requirements for the registration of An alternative approach may be used if SUMMARY: The Food and Drug pharmaceutical products among three such approach satisfies the Administration (FDA) is publishing a regions: The European Union, Japan, requirements of the applicable statute, guideline entitled ‘‘Guideline for the and the United States. The six ICH regulations, or both. Photostability Testing of New Drug sponsors are the European Commission, As with all of FDA’s guidelines, the Substances and Products.’’ The the European Federation of public is encouraged to submit written guideline was prepared under the Pharmaceutical Industries Associations, comments with new data or other new auspices of the International Conference the Japanese Ministry of Health and information pertinent to this guideline. on Harmonisation of Technical Welfare, the Japanese Pharmaceutical The comments in the docket will be Requirements for Registration of Manufacturers Association, the Centers periodically reviewed, and, where Pharmaceuticals for Human Use (ICH). for Drug Evaluation and Research and appropriate, the guideline will be The guideline describes the basic testing Biologics Evaluation and Research, amended. The public will be notified of protocol for photostability testing of FDA, and the Pharmaceutical Research any such amendments through a notice new drug substances and products in and Manufacturers of America. The ICH in the Federal Register. original new drug application Secretariat, which coordinates the Interested persons may, at any time, submissions. The guideline is an annex preparation of documentation, is submit written comments on the to the ICH guideline entitled ‘‘Stability provided by the International guideline to the Dockets Management Testing of New Drug Substances and Federation of Pharmaceutical Branch (address above). Two copies of Products.’’ Manufacturers Associations (IFPMA). any comments are to be submitted, DATES: Effective May 16, 1997. Submit The ICH Steering Committee includes except that individuals may submit one written comments at any time. representatives from each of the ICH copy. Comments are to be identified ADDRESSES: Submit written comments sponsors and the IFPMA, as well as with the docket number found in on the guideline to the Dockets observers from the World Health brackets in the heading of this Management Branch (HFA–305), Food Organization, the Canadian Health document. The guideline and received and Drug Administration, 12420 Protection Branch, and the European comments may be seen in the office Parklawn Dr., rm. 1–23, Rockville, MD Free Trade Area. above between 9 a.m. and 4 p.m., 20857. Copies of the guideline are In the Federal Register of March 7, Monday through Friday. An electronic available from the Drug Information 1996 (61 FR 9310), FDA published a version of this guideline is available on Branch (HFD–210), Center for Drug draft tripartite guideline entitled the Internet using the World Wide Web Evaluation and Research, Food and ‘‘Guideline for the Photostability (WWW) (http://www.fda.gov/cder/ Drug Administration, 5600 Fishers Testing of New Drug Substances and guidance.htm). The text of the guideline follows: Lane, Rockville, MD 20857, 301–827– Products.’’ The notice gave interested 4573. persons an opportunity to submit Guideline for the Photostability Testing of FOR FURTHER INFORMATION CONTACT: comments by June 5, 1996. New Drug Substances and Products Regarding the guideline: Nancy B. After consideration of the comments I. General Sager, Center for Drug Evaluation received and revisions to the guideline, The ICH Harmonized Tripartite Guideline and Research (HFD–357), Food and a final draft of the guideline was on Stability Testing of New Drug Substances Drug Administration, 5600 Fishers submitted to the ICH Steering and Products (hereafter referred to as the Lane, Rockville, MD 20857, 301– Committee and endorsed by the three parent guideline) notes that light testing 594–5721. participating regulatory agencies at the should be an integral part of stress testing. Regarding the ICH: Janet J. Showalter, ICH meeting held on November 5, 1996. This document is an annex to the parent Office of Health Affairs (HFY–20), In the Federal Register of September guideline and addresses the recommendations for photostability testing. Food and Drug Administration, 22, 1994 (59 FR 48754), the agency 5600 Fishers Lane, Rockville, MD published a guideline entitled ‘‘Stability A. Preamble 20857, 301–827–0864. Testing of New Drug Substances and The intrinsic photostability characteristics SUPPLEMENTARY INFORMATION: In recent Products.’’ The guideline addresses the of new drug substances and products should years, many important initiatives have generation of stability information for be evaluated to demonstrate that, as been undertaken by regulatory submission to FDA in new drug appropriate, light exposure does not result in authorities and industry associations to applications for new molecular entities unacceptable change. Normally, photostability testing is carried out on a promote international harmonization of and associated drug products. In the single batch of material selected as described regulatory requirements. FDA has discussion of ‘‘stress testing’’ for both under ‘‘Selection of Batches’’ in the parent participated in many meetings designed drug substances and drug products, the guideline. Under some circumstances these to enhance harmonization and is guideline states that ‘‘light testing’’ studies should be repeated if certain committed to seeking scientifically should be an integral part of stress variations and changes are made to the Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27117 product (e.g., formulation, packaging). used if they are scientifically sound and The extent of drug product testing should Whether these studies should be repeated justification is provided. be established by assessing whether or not depends on the photostability characteristics A systematic approach to photostability acceptable change has occurred at the end of determined at the time of initial filing and testing is recommended covering, as the light exposure testing as described in the the type of variation and/or change made. appropriate, studies such as: Decision Flow Chart for Photostability The guideline primarily addresses the (i) Tests on the drug substance; Testing of Drug Products. Acceptable change generation of photostability information for (ii) Tests on the exposed drug product is change within limits justified by the submission in registration applications for outside of the immediate pack; and if applicant. new molecular entities and associated drug The formal labeling requirements for products. The guideline does not cover the necessary; photolabile drug substances and drug photostability of drugs after administration (iii) Tests on the drug product in the products are established by national/regional (i.e., under conditions of use) and those immediate pack; and if necessary; requirements. applications not covered by the parent (iv) Tests on the drug product in the guideline. Alternative approaches may be marketing pack. BILLING CODE 4160±01±F 27118 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

BILLING CODE 4160±01±C Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27119

B. Light Sources analytical procedures. In these studies, the clarity or color of solution) and for assay and The light sources described below may be samples should be in chemically inert and degradants by a method suitably validated for used for photostability testing. The applicant transparent containers. In these forced products likely to arise from photochemical should either maintain an appropriate degradation studies, a variety of exposure degradation processes. control of temperature to minimize the effect conditions may be used, depending on the Where solid drug substance samples are of localized temperature changes or include photosensitivity of the drug substance involved, sampling should ensure that a a dark control in the same environment involved and the intensity of the light representative portion is used in individual unless otherwise justified. For both options sources used. For development and tests. Similar sampling considerations, such 1 and 2, a pharmaceutical manufacturer/ validation purposes, it is appropriate to limit as homogenization of the entire sample, applicant may rely on the spectral exposure and end the studies if extensive apply to other materials that may not be distribution specification of the light source decomposition occurs. For photostable homogeneous after exposure. The analysis of the exposed sample should be performed manufacturer. materials, studies may be terminated after an appropriate exposure level has been used. concomitantly with that of any protected Option 1 The design of these experiments is left to the samples used as dark control if these are used Any light source that is designed to applicant’s discretion although the exposure in the test. produce an output similar to the D65/ID65 levels used should be justified. C. Judgment of Results emission standard such as an artificial Under forcing conditions, decomposition The forced degradation studies should be daylight fluorescent lamp combining visible products may be observed that are unlikely designed to provide suitable information to and ultraviolet (UV) outputs, xenon, or metal to be formed under the conditions used for develop and validate test methods for the halide lamp. D65 is the internationally confirmatory studies. This information may confirmatory studies. These test methods recognized standard for outdoor daylight as be useful in developing and validating should be capable of resolving and detecting defined in ISO 10977 (1993). ID65 is the suitable analytical methods. If in practice it photolytic degradants that appear during the equivalent indoor indirect daylight standard. has been demonstrated they are not formed confirmatory studies. When evaluating the For a light source emitting significant in the confirmatory studies, these radiation below 320 nanometers (nm), an results of these studies, it is important to degradation products need not be examined recognize that they form part of the stress appropriate filter(s) may be fitted to eliminate further. such radiation. testing and are not therefore designed to Confirmatory studies should then be establish qualitative or quantitative limits for Option 2 undertaken to provide the information change. For option 2 the same sample should be necessary for handling, packaging, and The confirmatory studies should identify exposed to both the cool white fluorescent labeling (see section I.C., Procedure, and precautionary measures needed in and near ultraviolet lamp. II.A., Presentation of Samples, for manufacturing or in formulation of the drug 1. A cool white fluorescent lamp designed information on the design of these studies). product, and if light resistant packaging is to produce an output similar to that specified Normally, only one batch of drug substance needed. When evaluating the results of in ISO 10977 (1993); and is tested during the development phase, and confirmatory studies to determine whether 2. A near UV fluorescent lamp having a then the photostability characteristics should change due to exposure to light is acceptable, spectral distribution from 320 nm to 400 nm be confirmed on a single batch selected as it is important to consider the results from with a maximum energy emission between described in the parent guideline if the drug other formal stability studies in order to 350 nm and 370 nm; a significant proportion is clearly photostable or photolabile. If the assure that the drug will be within justified of UV should be in both bands of 320 to 360 results of the confirmatory study are limits at time of use (see the relevant ICH nm and 360 to 400 nm. equivocal, testing of up to two additional Stability and Impurity Guidelines). batches should be conducted. Samples C. Procedure should be selected as described in the parent III. Drug Product For confirmatory studies, samples should guideline. Normally, the studies on drug products be exposed to light providing an overall A. Presentation of Samples should be carried out in a sequential manner illumination of not less than 1.2 million lux starting with testing the fully exposed hours and an integrated near ultraviolet Care should be taken to ensure that the product then progressing as necessary to the energy of not less than 200 watt hours/square physical characteristics of the samples under product in the immediate pack and then in meter to allow direct comparisons to be made test are taken into account and efforts should the marketing pack. Testing should progress between the drug substance and drug be made, such as cooling and/or placing the until the results demonstrate that the drug product. samples in sealed containers, to ensure that product is adequately protected from Samples may be exposed side-by-side with the effects of the changes in physical states exposure to light. The drug product should a validated chemical actinometric system to such as sublimation, evaporation, or melting be exposed to the light conditions described ensure the specified light exposure is are minimized. All such precautions should under the procedure in section I.C. obtained, or for the appropriate duration of be chosen to provide minimal interference Normally, only one batch of drug product time when conditions have been monitored with the exposure of samples under test. is tested during the development phase, and using calibrated radiometers/lux meters. An Possible interactions between the samples then the photostability characteristics should example of an actinometric procedure is and any material used for containers or for be confirmed on a single batch selected as provided in the Annex. general protection of the sample should also described in the parent guideline if the If protected samples (e.g., wrapped in be considered and eliminated wherever not product is clearly photostable or photolabile. aluminum foil) are used as dark controls to relevant to the test being carried out. If the results of the confirmatory study are evaluate the contribution of thermally As a direct challenge for samples of solid equivocal, testing of up to two additional induced change to the total observed change, drug substances, an appropriate amount of batches should be conducted. these should be placed alongside the sample should be taken and placed in a For some products where it has been authentic sample. suitable glass or plastic dish and protected demonstrated that the immediate pack is with a suitable transparent cover if completely impenetrable to light, such as II. Drug Substance considered necessary. Solid drug substances aluminum tubes or cans, testing should For drug substances, photostability testing should be spread across the container to give normally only be conducted on directly should consist of two parts: Forced a thickness of typically not more than 3 exposed drug product. degradation testing and confirmatory testing. millimeters. Drug substances that are liquids It may be appropriate to test certain The purpose of forced degradation testing should be exposed in chemically inert and products, such as infusion liquids or dermal studies is to evaluate the overall transparent containers. creams, to support their photostability in-use. photosensitivity of the material for method The extent of this testing should depend on development purposes and/or degradation B. Analysis of Samples and relate to the directions for use, and is left pathway elucidation. This testing may At the end of the exposure period, the to the applicant’s discretion. involve the drug substance alone and/or in samples should be examined for any changes The analytical procedures used should be simple solutions/suspensions to validate the in physical properties (e.g., appearance, suitably validated. 27120 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

A. Presentation of Samples method suitably validated for products likely Prepare a sufficient quantity of a 2 percent Care should be taken to ensure that the to arise from photochemical degradation weight/volume aqueous solution of quinine physical characteristics of the samples under processes. monohydrochloride dihydrate (if necessary, test are taken into account and efforts, such When powder samples are involved, dissolve by heating). as cooling and/or placing the samples in sampling should ensure that a representative Option 1 sealed containers, should be made to ensure portion is used in individual tests. For solid Put 10 milliliters (mL) of the solution into that the effects of the changes in physical oral dosage form products, testing should be states are minimized, such as sublimation, conducted on an appropriately sized a 20 mL colorless ampoule, seal it evaporation, or melting. All such precautions composite of, for example, 20 tablets or hermetically, and use this as the sample. should be chosen to provide minimal capsules. Similar sampling considerations, Separately, put 10 mL of the solution into a interference with the irradiation of samples such as homogenization or solubilization of 20 mL colorless ampoule (see note 1), seal it under test. Possible interactions between the the entire sample, apply to other materials hermetically, wrap in aluminum foil to samples and any material used for containers that may not be homogeneous after exposure protect completely from light, and use this as or for general protection of the sample should (e.g., creams, ointments, suspensions). The the control. Expose the sample and control to also be considered and eliminated wherever analysis of the exposed sample should be the light source for an appropriate number of not relevant to the test being carried out. performed concomitantly with that of any hours. After exposure determine the Where practicable when testing samples of protected samples used as dark controls if absorbances of the sample (AT) and the the drug product outside of the primary pack, these are used in the test. control (AO) at 400 nm using a 1 centimeter these should be presented in a way similar (cm) pathlength. Calculate the change in C. Judgment of Results to the conditions mentioned for the drug absorbance, ∆ A = AT – AO. The length of substance. The samples should be positioned Depending on the extent of change, special exposure should be sufficient to ensure a to provide maximum area of exposure to the labeling or packaging may be needed to change in absorbance of at least 0.9. light source. For example, tablets, capsules, mitigate exposure to light. When evaluating Option 2 should be spread in a single layer. the results of photostability studies to If direct exposure is not practical (e.g., due determine whether change due to exposure to Fill a 1 cm quartz cell and use this as the to oxidation of a product), the sample should light is acceptable, it is important to consider sample. Separately fill a 1 cm quartz cell, be placed in a suitable protective inert the results obtained from other formal wrap in aluminum foil to protect completely transparent container (e.g., quartz). stability studies in order to assure that the from light, and use this as the control. Expose If testing of the drug product in the product will be within proposed the sample and control to the light source for immediate container or as marketed is specifications during the shelf life (see the an appropriate number of hours. After needed, the samples should be placed relevant ICH Stability and Impurity exposure determine the absorbances of the horizontally or transversely with respect to Guidelines). sample (AT) and the control (AO) at 400 nm. the light source, whichever provides for the Calculate the change in absorbance, ∆ A = AT IV. Annex most uniform exposure of the samples. Some – AO. The length of exposure should be adjustment of testing conditions may have to A. Quinine Chemical Actinometry sufficient to ensure a change in absorbance be made when testing large volume of at least 0.5. The following provides details of an containers (e.g., dispensing packs). Alternative packaging configurations may actinometric procedure for monitoring be used if appropriately validated. B. Analysis of Samples exposure to a near UV flourescent lamp Alternative validated chemical actinometers At the end of the exposure period, the (based on FDA/National Institute of may be used. samples should be examined for any changes Standards and Technology study). For other Note 1: Shape and Dimensions (See Japanese in physical properties (e.g., appearance, light sources/actinometric systems, the same Industry Standard (JIS) R3512 (1974) for clarity, or color of solution, dissolution/ approach may be used, but each actinometric ampoule specifications) disintegration for dosage forms such as system should be calibrated for the light capsules) and for assay and degradants by a source used. BILLING CODE 4160±01±F Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices 27121

BILLING CODE 4160±01±C 27122 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notices

V. Glossary material for method development purposes VI. References • Immediate (primary) pack is that and/or degradation pathway elucidation. Yoshioka, S., et al., ‘‘Quinine Actinometry • Confirmatory studies are those constituent of the packaging that is in direct as a Method for Calibrating Ultraviolet undertaken to establish photostability contact with the drug substance or drug Radiation Intensity in Light-Stability Testing characteristics under standardized of Pharmaceuticals,’’ Drug Development and product, and includes any appropriate label. conditions. These studies are used to identify • Industrial Pharmacy, 20(13):2049–2062, Marketing pack is the combination of precautionary measures needed in immediate pack and other secondary manufacturing or formulation and whether 1994. packaging such as a carton. light-resistant packaging and/or special Dated: May 2, 1997. • Forced degradation testing studies are labeling is needed to mitigate exposure to William K. Hubbard, those undertaken to degrade the sample light. For the confirmatory studies, the Associate Commissioner for Policy deliberately. These studies, which may be batch(es) should be selected according to Coordination. undertaken in the development phase batch selection for long-term and accelerated normally on the drug substances, are used to testing which is described in the parent [FR Doc. 97–12850 Filed 5–15–97; 8:45 am] evaluate the overall photosensitivity of the guideline. BILLING CODE 4160±01±F federal register May 16,1997 Friday Amendments; FinalRule Modernization Regulations:Technical Development, andPublicHousing Admission Preferences,PublicHousing 24 CFRPart5,Etal. Development Housing andUrban Department of Part III 27123 27124 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations

DEPARTMENT OF HOUSING AND accessed via text telephone by dialing matching characteristics of a unit with URBAN DEVELOPMENT the Federal Information Relay Service at characteristics of applicants (including 1–800–877–8339. accessibility features and such needs), 24 CFR Parts 5, 941, 950, and 968 SUPPLEMENTARY INFORMATION: along with other preferences provisions, [Docket No. FR±4166±F±01] to all Section 8 programs where the I. Background responsible entity is selecting a family RIN 2501±AC38 On November 29, 1993, an interim for a particular unit. This technical Admission Preferences, Public rule was published (58 FR 62522), amendment corrects this oversight in Housing Development, and Public which revised the definition of ‘‘Total the listing of covered Section 8 Housing Modernization Regulations: development cost’’ found in the public programs by changing the above-quoted Technical Amendments housing development regulations (24 language to, ‘‘developments CFR part 941) and the Indian housing administered under the Section 8 AGENCY: Office of the Secretary, HUD. regulations (located then at 24 CFR part programs and * * * public housing’’. 905, now at part 950). That rule also ACTION: Final rule: technical A third rulemaking that occasioned amendment. revised other sections of those regulations specifying how the total the need for this rule is a final rule SUMMARY: This final rule makes development cost concept was used to published on October 18, 1996 (61 FR technical amendments to several of limit the maximum approvable cost for 54492) that consolidated provisions HUD’s regulations that affect its assisted a project. That rule contained an dealing with income and rent applicable housing programs. These amendments expiration date of May 29, 1995. to several assisted housing programs make the following changes: revise Having lost track of the existence of from 24 CFR parts 813 and 913 into one language in a rule governing admission that expiration date for these provisions subpart of 24 CFR part 5. It preserved preferences in the assisted housing and, having further revised the sections language in the new § 5.617(b)(3) programs to make it more general, to in the meantime, the Department failed referring to the purposes of this ‘‘part,’’ cover all the Section 8 Housing to realize that the definitions and other when it should have modified the Assistance Payments programs it was affected sections might return to their language to fit the new context of its intended to cover, as evidenced by the pre-1993 status. In the case of the public placement in a ‘‘subpart.’’ An old Section 8 regulations that cross- housing development regulations, the typographical error in that same section reference the preferences rule; restore definition of ‘‘Total development cost’’ was preserved from the former location, language regarding ‘‘total development was omitted when title 24 of the Code and is being corrected in this cost’’ that was removed from regulations of Federal Regulations was published, amendment. covering the public housing in accordance with the expiration date. A fourth rulemaking that is a development program when an interim In the case of the Indian housing rule expired on May 29, 1995; restore regulations, the definition remains. foundation for this rule is a final rule language stating review criteria for A second prior rulemaking that published on March 5, 1996. That rule performance under modernization occasioned the need for this rule is the streamlined the modernization standards; and conform the final rule published on March 6, 1996 provisions of the Indian housing and requirements for paid-off and conveyed (61 FR 9040), consolidating the public housing programs. However, in Turnkey III units in public housing to provisions governing admissions one respect it used different language, those in the Indian housing program. preferences into a single part, 24 CFR inadvertently. This rule conforms the These changes rectify problems that part 5, subpart E. Although the terms of language of the public housing rule occurred inadvertently in previous the 1997 appropriations for HUD (§ 968.102(b)) to the language of the rulemakings. continue the suspension of application Indian housing rule with respect to the EFFECTIVE DATE: June 16, 1997. of the Federal preferences to HUD treatment of paid-off Turnkey III units. FOR FURTHER INFORMATION CONTACT: For programs through September 30, 1997, (See § 950.602(b) at 61 FR 8721.) It also the public housing program, contact Bill the Department feels it necessary to conforms the language of the public Flood, Director, Office of Capital correct the rule that will apply on housing rule to the language of the Improvements, Office of Public Housing October 1, 1997, absent additional Indian housing rule with respect to Investments, Department of Housing Congressional action on this subject. increased value of a homeownership and Urban Development, 451 Seventh The consolidated preferences rule unit caused by its substantial Street, S.W., Washington, D.C. 20410, states, at 24 CFR 5.410(d)(1)(i), that its rehabilitation by adding the word ‘‘not’’ telephone (voice): (202) 708–1640, ext. provision concerning consideration of to paragraph § 968.112(d)(3)(ii) before 4185. (This is not a toll-free number.) matching the characteristics of the unit the phrase, ‘‘by an automatic increase in For hearing-and speech-impaired with the characteristics of the applicant its selling price.’’ (See persons, this number may be accessed family applies to ‘‘developments §§ 950.608(d)(3)(ii) and 968.112(d)(3)(ii) administered under the Section 8 New via text telephone by dialing the Federal at 61 FR 8724 and 8739, respectively). Information Relay Service at 1–800– Construction and Substantial 877–8339. Rehabilitation programs and the public In addition, it has come to the For the Section 8 programs, contact housing program’’. The Section 8 Department’s attention that performance Gerald J. Benoit, Director, Operations program regulations, on the other hand, standards were omitted from both the Division, Office of Public and Assisted provide (at 24 CFR 882.514(a)(1) and Indian housing and public housing rules Housing Operations, Department of 882.514(b), 886.132 and 886.337) that in that rulemaking. This rule corrects Housing and Urban Development, 451 the preferences provisions of 24 CFR that omission by adding new provisions Seventh Street, S.W., Washington, D.C. part 5 apply to the Section 8 Moderate §§ 950.660(a)(3) and 968.335(a)(3), 20410, telephone (voice): (202) 708– Rehabilitation and Section 8 HUD-Held which describe what HUD means by 0477, ext. 4069. (This is not a toll-free and HUD-Owned projects. The intent of ‘‘reasonable progress’’ in implementing number.) For hearing-and speech- the consolidation was to apply the the HA’s modernization plan. impaired persons, this number may be provision (§ 5.410(d)(1)(i)) that requires Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations 27125

II. Findings and Certifications Order. The rule only makes minor development, Public housing, Reporting technical changes to existing rules. and recordkeeping requirements. A. Justification for Final Rule D. Impact on Small Entities Accordingly, parts 5, 941, 950, and The Department generally publishes a 968 of title 24 of the Code of Federal rule for public comment before issuing The Secretary, in accordance with the Regulations are amended as follows: a rule for effect, in accordance with its Regulatory Flexibility Act (5 U.S.C. regulations on rulemaking in 24 CFR 605(b)), has reviewed this rule before PART 5ÐGENERAL HUD PROGRAM part 10. However, part 10 provides that publication and by approving it certifies REQUIREMENTS; WAIVERS that this rule will not have a significant prior public procedure will be omitted 1. The authority citation for part 5 impact on a substantial number of small if HUD determines that it is continues to read as follows: ‘‘impracticable, unnecessary, or contrary entities. This rule makes only technical to the public interest’’ (24 CFR 10.1). amendments to clarify existing Authority: 12 U.S.C. 101r–1; 42 U.S.C. 1436a, 3535(d), 3543, and 3544. This final rule merely makes technical regulations. 2. In § 5.410, paragraph (d)(1)(i), the amendments to existing rules to restore E. Unfunded Mandates Reform Act language removed inadvertently, and to first sentence is revised to read as correct language to remove an apparent The Secretary has reviewed this rule follows: before publication and by approving it inconsistency between program § 5.410 Selection preferences. regulations and a consolidated rule. certifies, in accordance with the Implementation of the rule’s provisions Unfunded Mandates Reform Act of 1995 * * * * * is needed as soon as possible to correct (2 U.S.C. 1532), that this rule does not (d) * * * impose a Federal mandate that will (1) * * * existing rules in effect. Therefore, the (i) Characteristics of the unit. For Department has determined that good result in the expenditure by State, local, and tribal governments, in the aggregate, developments administered under the cause exists to omit prior public Section 8 programs and for public procedure for this final rule because or by the private sector, of $100 million or more in any one year. housing, the responsible entity may, in such delay would be contrary to the selecting a family for a particular unit, public interest and unnecessary. Catalog match other characteristics of the B. Impact on the Environment The Catalog of Federal Domestic applicant family with the type of unit Assistance number for the programs available, e.g., number of bedrooms. This rule does not in itself have an *** environmental impact. This rule merely affected by this rule is 14.850. makes technical changes to existing * * * * * List of Subjects 3. In § 5.617, paragraph (b)(3) is rules to restore provisions removed revised to read as follows: inadvertently; to correct language to 24 CFR Part 5 provide consistency between program Administrative practice and § 5.617 Reexamination and verification. regulations, consistent with their procedure, Aged, Claims, Drug abuse, * * * * * original intent; and to correct editorial Drug traffic control, Grant programs— (b) * * * errors. It does not alter the housing and community development, (3) The use or disclosure of environmental effect of the regulations. Grant programs—Indians, Grant information obtained from a family or At the time of development of the programs—low and moderate income from another source pursuant to this original program regulations whose housing, Indians, Individuals with release and consent shall be limited to language is restored or corrected by this disabilities, Intergovernmental relations, purposes directly connected with rule, Findings of No Significant Impact Loan programs—housing and administration of this subpart or with respect to the environment were community development, Low and applying for assistance. made in accordance with HUD moderate income housing, Mortgage * * * * * regulations in 24 CFR part 50 and insurance, Penalties, Pets, Public section 102(2)(C) of the National housing, Rent subsidies, Reporting and PART 941ÐPUBLIC HOUSING Environmental Policy Act of 1969 (42 recordkeeping requirements, Social DEVELOPMENT U.S.C. 4332). The findings remain Security, Unemployment compensation, applicable to this rule and are available Wages. 4. The authority citation for part 941 for public inspection between 7:30 a.m. continues to read as follows: and 5:30 p.m. weekdays in the office of 24 CFR Part 941 Authority: 42 U.S.C. 1437b, 1437c, 1437g the Rules Docket Clerk, Room 10276, Grant programs—housing and and 3535(d). 451 Seventh Street, SW, Washington, community development, Loan 5. Section 941.103 is amended by DC 20410. programs—housing and community adding a definition of ‘‘Total C. Federalism Impact development, Public housing. development cost’’ in alphabetical order 24 CFR Part 950 at the end of the definitions, to read as The General Counsel, as the follows: Designated Official under section 6(a) of Aged, Grant programs—housing and Executive Order 12612, Federalism, has community development, Grant § 941.103 Definitions. determined that this rule does not have programs—Indians, Individuals with * * * * * significant impact on States or their disabilities, Low and moderate income Total development cost (TDC). The political subdivisions, or the housing, Public housing, Reporting and sum of all HUD-approved costs for relationship between the Federal recordkeeping requirements. planning (including proposal government and the States, or on the preparation), administration, site 24 CFR Part 968 distribution of power and acquisition, relocation, demolition, responsibilities among the various Grant programs—housing and construction and equipment, interest levels of government. As a result, the community development, Indians, Loan and carrying charges, on-site streets and rule is not subject to review under the programs—housing and community utilities, non-dwelling facilities, a 27126 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations contingency allowance, insurance (iii) Reasonable progress toward § 968.112 [Amended] premiums, off-site facilities, any initial bringing all of its developments to the 10. Section 968.112 is amended by modernization and energy conservation operating deficit, and other costs adding to the last sentence of paragraph necessary to develop the project. The standards and toward implementing the (d)(3)(ii) the word ‘‘not’’ before the total development cost in the proposal, work specified in the annual statement phrase ‘‘by an automatic increase in its when reviewed and approved by HUD, or five-year action plan designed to selling price.’’ becomes the maximum total address management deficiencies. development cost stated in the ACC. * * * * * 11. In § 968.335, paragraph (a)(3) is Upon completion of the project, the revised to read as follows: actual development cost is determined, PART 968ÐPUBLIC HOUSING MODERNIZATION § 968.335 HUD review of PHA and this becomes the maximum total performance. development cost of the project for 8. The authority citation for part 968 purposes of the ACC. The maximum continues to read as follows: (a) * * * total development cost excludes costs (3) Reasonable progress. HUD shall funded from donations. Authority: 42 U.S.C. 1437d, 1437l, and 3535(d). determine whether the PHA has satisfied, or has made reasonable PART 950ÐINDIAN HOUSING 9. In § 968.102, paragraph (b) is progress towards satisfying, the PROGRAMS revised to read as follows: following performance standards: 6. The authority citation for part 950 § 968.102 Special requirements for (i) Conformity with its comprehensive is revised to read as follows: Turnkey III developments. plan, including its annual statement and Authority: 25 U.S.C. 450e(b), 42 U.S.C. * * * * * latest HUD-approved five-year action 1437aa–1437ee, and 3535(d). (b) Eligibility of paid-off and conveyed plan, and other statutory and regulatory units for assistance.—(1) Paid-off units. requirements; 7. In § 950.660, paragraph (a)(3) is A Turnkey III unit that is paid off but revised to read as follows: has not been conveyed at the time the (ii) Continuing capacity to carry out its comprehensive plan in a timely § 950.660 HUD review of IHA performance. CIAP application or CGP Annual Submission is submitted, is eligible for manner and expend the annual grant (a) * * * any physical improvement under funds; and (3) Reasonable progress. HUD shall § 968.112(d). (iii) Reasonable progress toward determine whether the IHA has (2) Conveyed units. Where bringing all of its developments to the satisfied, or has made reasonable modernization work has been approved modernization and energy conservation progress towards satisfying, the before conveyance, the PHA may standards and toward implementing the following performance standards: complete the work even if title to the work specified in the annual statement (i) Conformity with its comprehensive unit is subsequently conveyed before or five-year action plan designed to plan, including its annual statement and the work is completed. However, once address management deficiencies. latest HUD-approved five-year action conveyed, the unit is not eligible for * * * * * plan, and other statutory and regulatory additional or future assistance. A PHA Dated: May 7, 1997. requirements; shall not use funds provided under this (ii) Continuing capacity to carry out part for the purpose of modernizing Andrew Cuomo, its comprehensive plan in a timely units if the modernization work was not Secretary. manner and expend the annual grant approved before conveyance of title. [FR Doc. 97–12842 Filed 5–15–97; 8:45 am] funds; and * * * * * BILLING CODE 4210±32±P federal register May 16,1997 Friday Final Rule Student AssistanceGeneralProvisions; 34 CFRPart668 Education Department of Part IV 27127 27128 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Rules and Regulations

DEPARTMENT OF EDUCATION 1996 (61 FR 60490 (Record Retention)), Consumer protection, Education, November 29, 1996 (61 FR 60565 Reporting and recordkeeping 34 CFR Part 668 (Financial Responsibility)), and requirements, Student aid, Vocational November 29, 1996 (61 FR 60578 RIN 1840±AC36 education. (Project EASI/Cash Management)). Dated: May 9, 1997. Student Assistance General Provisions Compliance with information collection requirements in certain sections of these David A. Longanecker, AGENCY: Department of Education. regulations was delayed until those Assistant Secretary for Postsecondary ACTION: Final regulations. requirements were approved by OMB Education. under the Paperwork Reduction Act of The Secretary amends part 668 of title SUMMARY: The Secretary amends the 1995. On January 17, 1997, OMB 34 of the Code of Federal Regulations as regulations governing the Student approved the information collection Assistance General Provisions to add requirements for the record retention follows: the Office of Management and Budget regulations, the factors of financial (OMB) control numbers to certain PART 668ÐSTUDENT ASSISTANCE responsibility regulations, the standards GENERAL PROVISIONS sections of these regulations. These of administrative capability, the sections contain information collection compliance and financial statement requirements approved by OMB. Under 1. The authority citation for Part 668 audit regulations. On January 27, OMB continues to read as follows: the Paperwork Reduction Act of 1995, approved the information collection no persons are required to respond to a requirements for the EASI/cash Authority: 20 U.S.C. 1085, 1088, 1091, collection of information unless it management regulations. The 1092, 1094, 1099c, and 1141, unless displays a valid OMB control number. information collection requirements in otherwise noted. The Secretary takes this action to inform these regulations will become effective the public that these regulations have §§ 668.15, 668.16, 668.23, 668.24 with all of the other provisions of the [Amended] been approved and affected parties must regulations on July 1, 1997. comply with them. 2. Sections 668.15, 668.16, 668.23, Waiver of Proposed Rulemaking EFFECTIVE DATE: These regulations are and 668.24 are amended by adding the effective on July 1, 1997. It is the practice of the Secretary to OMB control number following the FOR FURTHER INFORMATION CONTACT: offer interested parties the opportunity sections to read as follows: ‘‘(Approved Paula Husselmann, U.S. Department of to comment on proposed regulations. by the Office of Management and Education, 600 Independence Avenue, However, the publication of OMB Budget under control number 1840– S.W., (Room 3053, ROB–3) Washington, control numbers is purely technical and 0537)’’ D.C. 20202. Telephone: (202) 708–8242. does not establish substantive policy. Individuals who use a Therefore, the Secretary has determined §§ 668.165, 668.167 [Amended] that, under 5 U.S.C. 553(b)(B), public telecommunications device for the deaf 3. Sections 668.165 and 668.167 are (TDD) may call the Federal Information comment on the regulations is amended by adding the OMB control Relay Service (FIRS) at 1–800–877–8339 unnecessary and contrary to the public number following the sections to read as between 8 a.m. and 8 p.m. Eastern time, interest. follows: ‘‘(Approved by the Office of Monday through Friday. List of Subjects Management and Budget under control SUPPLEMENTARY INFORMATION: Final number 1840–0697)’’ regulations for the Student Assistance 34 CFR Part 668 General Provisions were published in Administrative practice and [FR Doc. 97–12879 Filed 5–15–97; 8:45 am] the Federal Register on November 27, procedure, Colleges and universities, BILLING CODE 4000±01±P federal register May 16,1997 Friday Notice Endowment ChallengeGrantProgram; Hispanic-Serving Institutions,and for theStrengtheningInstitutions, Institution forFiscalYear1997;Eligibility Application forDesignationasanEligible Reopening ofClosingDateforReceipt Education Department of Part V 27129 27130 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Notice

DEPARTMENT OF EDUCATION for the Strengthening Institutions, SUPPLEMENTARY INFORMATION: One Hispanic-Serving Institutions, and criterion that an institution must satisfy [CFDA No. 84.031A, CFDA No. 84.031G] Endowment Challenge Grant programs. to qualify as an eligible institution Reopening of Closing Date for Receipt The purpose of this notice is to reopen under the Strengthening Institutions, of Applications for Designation as an the closing date for the transmittal of Hispanic-Serving Institutions, and Eligible Institution for Fiscal Year 1997; applications and to notify applicants of Endowment Challenge Grant Programs Eligibility for the Strengthening an error in the application package. This is the needy student requirement set Institutions, Hispanic-Serving action is taken to give institutions forth in section 312 (b)(1)(A) of the Institutions, and Endowment additional time to apply for the first Higher Education Act of 1965, as Challenge Grant Programs time for designation as an eligible amended. institution under these programs in FY However, an institution may request a SUMMARY: On November 27, 1996 and 1997 or to correct any previous waiver of that requirement if at least 30 percent of its enrollment consisted of January 13, 1997, notices were application based on the erroneous published in the Federal Register (61 students from low-income families. information in the application package. FR 60254–60265 and 62 FR 1739–1740) Appendix 1 on page 6 of the that established closing dates for DEADLINE DATE FOR TRANSMITTAL OF NEW application booklet contained incorrect transmittal of applications for the FY APPLICATIONS: June 6, 1997. Base Year Low-Income Levels. The 1997 designation of eligible institutions correct levels are as follows:

Contiguous 48 states, the Dis- Size of family unit trict of Columbia, Hawaii Alaska and outlying jurisdictions

1 ...... $11,040 $13,800 $12,705 2 ...... 14,760 18,450 16,980 3 ...... 18,480 23,100 21,255 4 ...... 22,200 27,750 25,530 5 ...... 25,920 32,400 29,805 6 ...... 29,640 37,050 34,080 7 ...... 33,360 41,700 38,355 8 ...... 37,080 46,350 42,360 * The figures shown under family income represent amounts equal to 150% of the family income levels established by the U.S. Bureau of the Census for determining poverty status. These levels were published by the U.S. Department of Health and Human Services in the FEDERAL REG- ISTER on February 10, 1994 (59 FR 6277±6278).

For family units with more than eight Institutions should base any application application notices for discretionary members, add the following amount for for a waiver of the needy student grant competitions, can be viewed on each additional family member: 3,720 criterion on the corrected Base Year the Department’s electronic bulletin for the contiguous 48 states, the District Low-Income Levels table in this notice. board (ED Board), telephone (202) 260– of Columbia and outlying jurisdictions; FOR APPLICATIONS OR INFORMATION 9950; on the Internet Gopher Server (at 4,650 for Alaska; and 4,275 for Hawaii. CONTACT: Strengthening Institutions gopher://gcs.ed.gov/); or on the World As a result of the inaccurate table, Program, Institutional Development and Wide Web (at http://gcs.ed.gov). institutions may have been discouraged Undergraduate Education Service, U.S. However, the official application notice from applying for a waiver, or Department of Education, 600 for a discretionary grant competition is institutions may have applied for and Independence Avenue, S.W., (Suite CY– the notice published in the Federal been denied a waiver based upon that 80, Portals Building), Washington, DC Register. inaccurate table. Under the reopened 20202–5335. Telephone: (202) 708–8816 Authority: 20 U.S.C. 1057, 1059c and application period, these institutions or 708–8839. Individuals who use a 1065a. may apply or reapply for a waiver of the telecommunications device for the deaf Dated: May 9, 1997. needy student criterion based on the (TDD) may call the Federal Information corrected low-income levels table. Relay Service (FIRS) at 1–800–877–8339 David A. Longanecker, In addition, any institution that seeks between 8 a.m. and 8 p.m., Eastern time, Assistant Secretary for Postsecondary for the first time to be designated as Monday through Friday. Information Education. eligible in FY 1997 may apply under about the Department’s funding [FR Doc. 97–12878 Filed 5–15–97; 8:45 am] this reopening of the closing date. opportunities, including copies of BILLING CODE 4000±01±P federal register May 16,1997 Friday Proposed Rule Plant-Pesticides; ViralCoatProteins; Rule Plant-Pesticides; NucleicAcids;Proposed Proposed Rule Plant-Pesticides, SupplementalNotice; 40 CFRPart180 Protection Agency Environmental Part VI 27131 27132 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules

ENVIRONMENTAL PROTECTION M St., SW., Washington, DC 20460. In that are sexually compatible. In the AGENCY person deliver comments to: Rm. 1132, proposal, sexually compatible, when Crystal Mall #2, 1921 Jefferson Davis referring to plants, means capable of 40 CFR Part 180 Highway, Arlington, VA. forming a viable zygote through the Comments and data may also be fusion of two gametes, including the use [OPP±300368A; FRL±5717±2] submitted electronically by following of bridging crosses and/or wide crosses. RIN 2070±AC02 the instructions under Unit IV.D. of this EPA stated in the proposed exemption document. No Confidential Business that a tolerance is not necessary to Plant-Pesticides; Supplemental Notice Information (CBI) should be submitted protect the public health for these of Proposed Rulemaking through e-mail. pesticidal substances because no new AGENCY: Environmental Protection FOR FURTHER INFORMATION CONTACT: By dietary exposures are likely to occur for Agency (EPA). mail: Elizabeth Milewski, Office of pesticidal substances moved between sexually compatible plants. For ACTION: Supplemental notice of Science, Coordination and Policy, Office pesticidal substances in this category, proposed rulemaking. of Prevention, Pesticides and Toxic Substances (7101), Environmental many years of experience of human use SUMMARY: This document announces the Protection Agency, 401 M St., SW., suggest that under normal dietary availability of information for additional Washington, DC 20460, Telephone: conditions these pesticidal substances public comment regarding a proposed (202) 260-6900, e-mail address: present negligible risk. Specifically, exemption from the requirement of a [email protected]. EPA proposed that ‘‘residues of pesticidal substances produced in living tolerance under the Federal Food, Drug, SUPPLEMENTARY INFORMATION: and Cosmetic Act (FFDCA) for plants as plant-pesticides are exempt pesticidal substances that are a I. Introduction from the requirement of a tolerance if component of certain plant-pesticides, EPA issued in the November 23, 1994 the genetic material that encodes for a pesticidal substance or leads to the i.e., those plant-pesticides that are Federal Register a package of five production of a pesticidal substance is derived from closely related plants. separate Federal Register proposals (59 derived from plants that are sexually Comments on this document may also FR 60496, 60519, 60535, 60542 and compatible with the recipient plant and affect EPA’s final determination on a 60545) (FRL–4755–2, FRL–4755–3, has never been derived from a source proposed exemption under the Federal FRL–4758–8, FRL–4755–5, and FRL– that is not sexually compatible with the Insecticide, Fungicide, and Rodenticide 4755–4) which together described EPA’s Act (FIFRA) for this same category of recipient plant’’ (59 FR at 60542). approach to substances produced in This supplemental notice addresses plant-pesticides. In 1994, EPA proposed plants that enable the plants to resist to exempt from the requirement of a the pesticidal substance portion of pests or disease. EPA’s package of plant-pesticides produced in food tolerance the pesticidal substance proposals indicated that these portion of plant-pesticides moved plants. A companion supplemental substances are pesticides under section notice issued elsewhere in today’s between closely related plants because a 2 of FIFRA (7 U.S.C. 136(u)) if they are tolerance would not be necessary to Federal Register addresses the proposed ‘‘intended for preventing, destroying, exemption for the nucleic acid protect the public health. Since repelling, or mitigating any pest’’ or if publication of the proposal, Congress component of plant-pesticides with they are ‘‘. . . intended for use as a plant regard to the FQPA amendments to enacted the Food Quality Protection Act regulator, defoliant, or desiccant’’ (FQPA) which amended FFDCA and FFDCA. regardless of whether the pesticidal Because FQPA modified FIFRA (7 FIFRA. EPA is issuing this document capabilities evolved in the plants or U.S.C. 136 et seq.) by incorporating the today to provide the public with an were introduced by breeding or through FFDCA safety standard into the FIFRA opportunity to comment on EPA’s the techniques of modern test for determining whether a pesticide analysis of how certain FQPA biotechnology. These substances, and poses an unreasonable adverse effect, amendments to FFDCA and FIFRA the genetic material necessary to comments on these supplemental apply to the proposed exemption from produce them, were designated ‘‘plant- notices may also affect EPA’s final the requirement of a tolerance for pesticides’’ by EPA in the November 23, determination on the proposed pesticidal substances moved between 1994 Federal Register notices. The exemption (59 FR 60519) under FIFRA closely related plants. EPA believes that proposals defined a ‘‘plant-pesticide’’ as for plant-pesticides that are derived it considered most of the substantive ‘‘a pesticidal substance that is produced from plants sexually compatible with issues associated with the FQPA in a living plant and the genetic material the recipient plant. amendments when it issued the necessary for the production of the EPA is issuing this supplemental proposals in 1994. EPA is thus, in this pesticidal substance where the notice, as well as the companion document, specifically seeking pesticidal substance is intended for use supplemental notice on nucleic acids to comment only on its evaluation of the in the living plant’’ (59 FR at 60534). ensure that the public has had adequate requirements imposed by FQPA that the One of the five documents (59 FR opportunity to comment on certain new Agency did not address in the 60535) proposed to exempt the considerations raised by the FQPA proposals. pesticidal substance portion of plant- amendments to FFDCA as these DATES: Comments, identified by the pesticides moved between closely considerations relate to the proposed docket control number ‘‘OPP– related plants from the FFDCA (21 exemption from tolerance for residues of 300368A,’’ must be received on or U.S.C. 346a) requirement of a tolerance pesticidal substances derived from before June 16, 1997. based upon an evaluation of the sexually compatible plants. In ADDRESSES: By mail, submit written potential for new dietary exposures to evaluating a pesticide chemical residue comments to: Public Information and the substances when they are produced for exemption from FFDCA tolerance Records Integrity Branch, Information in plants, or in plant parts, used as food requirements, EPA must now explicitly Resources and Services Division or feed. EPA proposed in the same address certain factors, and make a (7506C), Office of Pesticide Programs, Federal Register (59 FR at 60537) to determination that there is a reasonable Environmental Protection Agency, 401 define closely related plants as plants certainty that aggregate exposure to the Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27133 residue will cause no harm to the substance or mixture of substances 346a(b)(2)(C)(ii)(I)) and (c)(2)(B). Section public. The factors to be considered are intended for use as a plant regulator, 408(b)(2)(D) specifies other, general iterated in Unit II. of this supplemental defoliant, or desiccant, and (3) any factors EPA is to consider in notice. EPA’s evaluation of these factors nitrogen stabilizer’’ (7 U.S.C. 136(u)). establishing an exemption. Section relative to the proposed exemption (59 FQPA amends both FFDCA and 408(c)(3)(B) prohibits an exemption FR 60535) is contained in Unit IV. of FIFRA. FQPA, which took effect on unless there is either a practical method this supplemental notice. Consistent August 3, 1996, among other things, for detecting and measuring levels of with FFDCA section 408(c)(2)(B), EPA amends FIFRA such that a registration pesticide chemical residue in or on food has reviewed the available scientific cannot be issued for a pesticide to be or there is no need for such a method data and other relevant information in used on or in food unless the residue of (21 U.S.C. 346a(c)(3)(B)). support of this action. In today’s the pesticide in food qualifies for a Specifically, EPA must consider the supplemental notice, EPA requests tolerance or exemption from the following in deciding whether to grant comment only on the new conclusions requirement for a tolerance. FQPA an exemption: identified in Unit V.C. of this modified FIFRA section 2(bb) by 1. The validity, completeness, and supplemental notice. incorporating the FFDCA section 408 reliability of the available data from In light of FQPA, EPA is engaged in safety standard into the test for studies of the pesticide chemical and a process, including consultation with determining whether a pesticide poses pesticide chemical residue. registrants, states, and other interested an unreasonable adverse effect (7 U.S.C. 2. Nature of any toxic effect shown to stakeholders, to make decisions on the 136(bb)). FIFRA section 2(bb) defines be caused by the pesticide chemical or new policies and procedures that will the term ‘‘unreasonable adverse effects residues in studies. be appropriate as a result of enactment on the environment’’ to mean (1) any 3. Available information concerning of FQPA. In establishing this exemption unreasonable risk to man or the the relationship of the results of such from the requirement of a tolerance for environment, taking into account the studies to human risk. pesticidal substances derived from economic, social, and environmental 4. Available information concerning sexually compatible plants, EPA does costs and benefits of the use of any the dietary consumption patterns of not intend to set precedents for the pesticide, or (2) a human dietary risk consumers (and major identifiable application of section 408 and the new from residues that result from a use of subgroups of consumers). safety standard to other tolerances and a pesticide in or on any food 5. Available information concerning exemptions. This exemption from the inconsistent with the standard under the cumulative effects of such residues requirement of a tolerance will not section 408 of the FFDCA. Thus, a and other substances that have a restrict EPA’s options with regard to pesticide used in or on food that does common mechanism of toxicity. general procedures and policies for not meet the FFDCA section 408 safety 6. Available information concerning implementation of the amended FFDCA standard also would pose an the aggregate exposure levels of section 408. unreasonable adverse effect under consumers to the pesticide chemical FIFRA and would not qualify for an II. Statutory Authority residue and to other related substances, exemption from the requirements of Under FFDCA, EPA regulates FIFRA under FIFRA section 25(b)(2). including dietary exposure and non- pesticide chemical residues by FQPA amends FFDCA section occupational exposures. establishing tolerances limiting the 408(c)(2)(A)(i) to allow EPA to establish 7. Available information concerning amounts of residues that may be present an exemption from the requirement of a the variability of the sensitivities of in food, or by establishing exemptions tolerance for a ‘‘pesticide chemical major identifiable subgroups of from the requirement of a tolerance for residue’’ only if EPA determines that the consumers. such residues. Pesticide chemical exemption is ‘‘safe’’ (21 U.S.C. 8. Such information as the residues subject to regulation under 346a(c)(2)(A)(i)). Section 408(c)(2)(A)(ii) Administrator may require on whether FFDCA are defined by reference to the defines ‘‘safe’’ to mean that ‘‘there is a the pesticide chemical may have an definition of pesticide under FIFRA. reasonable certainty that no harm will effect in humans that is similar to an FFDCA section 201(q)(1) defines a result from aggregate exposure to the effect produced by a naturally-occurring ‘‘pesticide chemical residue’’ to mean pesticide chemical residue, including estrogen or other endocrine effects. the residue in or on food of a pesticide all anticipated dietary exposures and all 9. Safety factors which in the opinion chemical or other added substance other exposures for which there is of experts qualified by scientific training resulting primarily from the metabolism reliable information’’ (21 U.S.C. and experience to evaluate the safety of or degradation of a pesticide chemical 346a(c)(2)(A)(ii)). This includes food additives are generally recognized (21 U.S.C. 321(q)(2)). A ‘‘pesticide exposure through drinking water, but as appropriate for the use of animal chemical’’ means ‘‘any substance that is does not include occupational exposure. experimentation data (21 U.S.C. a pesticide within the meaning of the In establishing an exemption from the 346a(b)(2)(D). Federal Insecticide, Fungicide, and requirement of a tolerance, FFDCA Additionally, with respect to Rodenticide Act, including all active section 408(c), like the statute prior to exposure of infants and children, and inert ingredients of such pesticide’’ FQPA, does not require EPA to consider consistent with section 408(b)(2)(C), (21 U.S.C. 321(q)(1)). benefits that might be associated with EPA must assess the risk of the pesticide FIFRA authorizes EPA to regulate the use of the pesticide chemical. based on available information sale and distribution of pesticides in the FFDCA section 408 requires EPA to concerning: United States and to exempt a pesticide give special consideration to exposure 1. Consumption patterns that are from the requirements of FIFRA if it is of infants and children to the pesticide likely to result in disproportionately not of a character requiring regulation (7 chemical residue in establishing an high consumption of food with U.S.C. 136a(a) and 136w(b)). FIFRA exemption and to ‘‘ensure that there is pesticide residues. section 2(u) defines ‘‘pesticide’’ as: (1) a reasonable certainty that no harm will 2. Special susceptibility of infants and ‘‘any substance or mixture of substances result to infants and children from children to such residues. intended for preventing, destroying, aggregate exposure to the pesticide 3. Cumulative effects of residues with repelling, or mitigating any pest, (2) any chemical residue’’ (21 U.S.C. other substances that have a common 27134 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules mechanism of toxicity (21 U.S.C. unlikely to result in novel genus may be fairly closely related, 346a(b)(2)(C) and (c)(2)(B)). environmental or dietary exposures. If a certain species within a genus may crop plant normally produces a never have contributed traits to plants III. Summary of Proposed Regulations pesticidal substance, humans currently found in the food supply and This supplemental notice affects three consuming the crop, and organisms thus no known dietary exposure exists of the proposals that appeared in the coming into contact with the plant, have for traits from such plants. Therefore, November 23, 1994 Federal Register: (1) been exposed to that substance in the EPA preferred the option based on A proposal under FFDCA to exempt past, perhaps over long periods of time. sexual compatibility alone which EPA from the requirement of a tolerance, No new exposures are likely to occur. believes best describes plant-pesticides residues of the pesticidal substance Because of the high degree of found in the food supply. portion of any plant-pesticide that is relatedness among plants comprising In the 1994 Federal Register (59 FR derived from a plant that is sexually sexually compatible populations, the 60535), EPA also proposed to exempt compatible with the recipient plant (59 potential for new human exposures, from the requirement of a tolerance a FR 60535); (2) a companion proposal (59 either dietary or environmental, is low second category of pesticidal FR 60542) under FFDCA to exempt for pesticidal substances in sexually substances. This second category ‘‘residues of nucleic acids produced in compatible plants or plant parts used as consists of pesticidal substances that are living plants as part of a plant- food or feed. Under the exemptions for derived from food plants that are not pesticide’’; and (3) a proposal (59 FR plant-pesticides derived from sexually closely related to the recipient plant but 60519) under FIFRA to exempt from compatible plants, EPA exempts from which would not result in significantly most of the requirements of FIFRA, the FFDCA requirement of a tolerance different dietary exposures when plant-pesticides derived from a plant those plant-pesticides that are normally produced in the recipient plant. This that is sexually compatible with the a component of (not new to) the second category will not be addressed in recipient plant. recipient plant. EPA believes that crops this supplemental notice but will be In the November 23, 1994 Federal grown for food in the U.S. today would addressed in a separate Federal Register Register, the Agency proposed to qualify for this exemption (59 FR at in the future. exempt from the FFDCA requirement of 60535 and 60542) based on the standard a tolerance (59 FR 60535) and most of relatedness as described by sexual IV. Risk Assessment and Safety requirements of FIFRA (59 FR 60519) compatibility. Determinations pesticidal substances moved between The proposed exemption from the A. Risk Assessment in the 1994 Proposal plants that are closely related. EPA requirement of a tolerance (59 FR discussed two options for describing 60535) was examined within the context This section reviews the analysis that plants that are closely related: (1) Plants of the food supply and dietary EPA used to support its 1994 proposal that are sexually compatible, or (2) consumption. Many substances having (59 FR 60535) to exempt pesticidal plants that are within the same pesticidal activity occur naturally at low substances derived from sexually taxonomic genus or are sexually concentrations in the edible parts of compatible plants from the requirement compatible. Sexual compatibility would plants and have long been accepted as of a food tolerance under the FFDCA. include use of techniques such as wide part of the human diet. Extensive use EPA also relied upon the analysis in the and bridging crosses. EPA’s preferred and experience show the safety of foods 1994 FFDCA proposal to evaluate approach for describing closely related containing these substances. Although human dietary risks in support of its plants was the option based on sexual very large numbers of plant varieties are proposal (59 FR 60519) to exempt plant- compatibility alone. Thus, EPA used and large numbers of varieties are pesticides from sexually compatible proposed that plant-pesticides derived introduced into agricultural use each plants from most FIFRA requirements. from plants that are sexually compatible year, there are only a few examples of Non-dietary human risks from exposure would be exempt from most FIFRA plant varieties causing food safety to such pesticidal substances were requirements, and residues of pesticidal concerns. examined under the analysis for the substances that are derived from Based on these considerations, and as proposed FIFRA exemption and are sexually compatible plants would be required by the FFDCA prior to discussed in this supplemental notice exempted from the FFDCA requirement enactment of the FQPA, EPA concluded only as they pertain to the dietary risks. of a tolerance. that plant-pesticides found in the When EPA proposed in 1994 to The rationale underlying the current food supply would present no exempt residues of pesticidal substances proposed exemptions is that plants in a hazard under potential use conditions that are derived from sexually sexually compatible population are and, hence, a tolerance would not be compatible plants from the requirement likely to have the same information necessary to protect the public health. of a tolerance (59 FR 60535), it encoded in their genetic material and to EPA’s alternative option for concluded that a food tolerance for such share traits in common. Groups of describing relatedness in plants (59 FR substances would not be necessary to plants having a common pool of genetic at 60537) used both sexual compatibility protect the public health because such material have resulted from the and taxonomy (genus). Under this substances presented no significant processes of evolution. Generations of alternative option, if a plant-pesticide hazards under potential use conditions. directed breeding to produce improved was derived from a plant classified in EPA based this conclusion upon its crops for cultivation have tended to the same genus as the recipient plant or analysis of potential dietary exposure, increase the relatedness of agricultural if the donor plant was sexually hazard and risk from consumption of crop plants and reduce the variability in compatible with the recipient plant, that plants that contain these substances. the common pools of genetic plant-pesticide would be exempt. The EPA recognized and relied on the long information of crop plants. Because assumption underlying this alternative history of human experience with sexually compatible plants share a option was that the taxonomic grouping growing and consuming plants for food common pool of genetic material, of genus correlated to a relatively high and with the procedures of plant movement of genetic material encoding degree of relatedness. This option was breeding. Plant breeding combines the pesticidal substances between plants in not EPA’s preferred approach, because scientific knowledge of experimental a sexually compatible population is even though plants grouped within a laboratory disciplines such as plant Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27135 physiology, plant genetics, and increase the extent of relatedness among dietary route because the substances are phytopathology into a practical field plant varieties in agricultural crops. The in the plant tissue and thus are found science that develops new plant 1994 proposal is based on experience either within the plant or in close cultivars for use in agriculture. EPA has with the exposure of human proximity to the plant. In contrast, used these bases of knowledge and populations to crops developed through applied synthetic chemicals have much experience in its estimation of the breeding process, i.e., crops greater potential for new dietary exposures and hazards of the residues of developed through 50 to 100 years of exposures. Prior to the use of synthetic pesticidal substances addressed by this scientific breeding among sexually pesticides, there may be very little supplemental notice as well as for the compatible plant populations using scientific experience with the new 1994 proposal. Mendelian genetics. The sexually pesticidal substance or even a complete EPA concluded in the 1994 proposal compatible, wild relatives of cultivated lack of known dietary exposure to the (59 FR 60535) that the vast majority of plants that are used in this process do pesticidal substance. plant varieties developed by plant not themselves necessarily have any EPA evaluated the potential risks of a breeders using traits from sexually history of human consumption but have pesticidal substance derived from a compatible plants produce foods that safely contributed traits through sexual closely-related plant relative based upon are safe for human consumption. This recombination to cultivars on the the unique characteristics of plant- conclusion is based on the experience of market. For example, wild species of pesticides. In evaluating the pesticidal consuming crops resulting from tomatoes have been used, in plant substance component of plant- scientific breeding as well as the breeding, as a source of increased pesticides, EPA took into account historical consumption of crops since resistance to economically important available knowledge from a number of the prehistorical origins of agriculture. diseases in tomato (Ref. 1). Sexually scientific disciplines. Experimental data These foods undoubtedly contain(ed) compatible crop varieties of the same in the area of plant genetics provided an pesticidal substances (and the genetic plant species are also crossed with each estimate of the exchange, between material necessary to produce them) and other to achieve better pest resistance in plants, of genetic material that is share a history of safe consumption. In their progeny. Food plant varieties necessary for the production of the addition, appropriate processing developed in this way have been pesticidal substances. EPA also procedures are widely known and are introduced, cultivated, and consumed considered information from the field of routinely used by consumers in by humans for many years with very plant physiology regarding plant preparation of food from such sources, few observed adverse affects (59 FR at metabolism, the production of including those foods which require 60538). substances that may have pesticidal specific processing/preparation steps to If a food plant or its close relative effects, and conditions that may limit avoid dietary problems. normally produces a pesticidal the production of such substances. This In the 1994 proposal, EPA stated that substance, humans have likely been information provided a basis for EPA’s many substances having pesticidal exposed to that substance in the past. estimation of the physiological activity occur naturally at low Experience with both growing limitations to production of substances concentrations in the edible parts of agricultural plants and consuming food that may have a pesticidal effect. The plants and have long been accepted as from plants which undoubtedly contain Agency also used experimental data part of the human diet. Extensive use pesticidal substances demonstrates the derived from the science of and experience show the safety of foods safety of the current food supply, phytopathology to characterize the containing these substances. For many including substances in the food supply disease and pest resistant mechanisms foods, the naturally-occurring toxicants that may be plant-pesticides. The known to occur in plants. All of these they may contain, some of which might Agency believes this experience bases of knowledge and experience were be pesticidal in function, are known. combined with the knowledge of plant integral to EPA’s assessment of Also, the established practices that plant genetics, plant physiology, exposures and hazards associated with breeders employ in selecting and phytopathology and plant breeding are pesticidal substances. developing new plant varieties, such as the appropriate considerations in EPA considered whether there are chemical analyses, taste-testing, and evaluating the potential risks of residues variations in the levels of pesticidal visual analyses, have historically proven of the pesticidal substances proposed substances that are the subject of the to be reliable for ensuring food safety. for the tolerance exemption (59 FR proposed exemption (59 FR 60535) That there are few documented cases of 60535). within and between plant varieties, and new plant cultivars causing food safety The residues of the pesticidal thus variation in exposure that might problems despite the large numbers of substances that are the subject of the affect the Agency’s determination that new varieties introduced into commerce proposed exemption have evolved in pesticidal substances that are the subject each year, is a reflection of the populations of sexually compatible of the proposed exemption present effectiveness of this process (59 FR at plants. They are part of the metabolic negligible risk. The amount of pesticidal 60538). cycles of these plants. They are thus substance produced by plants normally Plant varieties for the food market subject to the processes of degradation varies among members of a closely have been developed by breeders and decay that all organic matter related population (even within a single seeking better products, higher yields, undergoes. They are not likely to persist variety), because of the effects of and other desirable crop characteristics. in the environment nor bioaccumulate conditions such as genetic constitution In this process, it has been common in the tissues of living organisms. and environment (e.g., weather) on trait agricultural practice to move traits Because they do not persist, the expression. This variation in turn leads among sexually compatible food plant potential for new exposures to the to differences in the levels and types of varieties as well as to introduce traits residues to occur, beyond direct exposure to the pesticidal substance. from sexually compatible wild relatives physical exposures to the plant, would Since such variation is a natural into plant varieties that are used as food be limited. As noted in the proposal (59 phenomenon common to all plants, plants. This type of breeding process FR at 60516), plant-pesticides present humans have been and are always has been used on most sexually negligible exposure of the pesticidal exposed to varying levels of the compatible crop plants, and tended to substances to humans outside the pesticidal substances that are the subject 27136 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules of this exemption when they consume pesticidal substances that are the subject environment for long periods of time food from plants. of the proposed exemption, the current and may bioaccumulate in the tissues of EPA also considered the constraints method whereby sensitive individuals living organisms. upon the extent to which any substance recognize and avoid foods known to The risk assessment methodology can be increased in highly managed cause them problems will not be altered. appropriate for such chemicals is not food crop plants without unwanted As noted in the proposal (59 FR at appropriate for the pesticidal substances effects on other, desirable characteristics 60505), ‘‘consumer experience with the that evolved in the plant and are the of the plant such as yield or palatability. handling and preparation of food from subject of the proposed exemption (59 In general, breeders balance a number of these plants contributes to the safety of FR 60535). Plant-pesticides derived characteristics (e.g., yield, palatability, food from these plants. from sexually compatible plants differ uniformity of seed drop) in developing The approach used by EPA to from more traditional pesticides in a marketable plant varieties. Plants have, evaluate the dietary risk posed by the number of ways. As noted in the as do all organisms, only a limited pesticidal substance component of proposal (59 FR at 60511), the major capacity to express a particular trait plant-pesticides derived from sexually characteristic of plant-pesticides that is without an unacceptable drain on compatible plants (59 FR 60535) differs different from traditional pesticides is energy reserves. Greatly increased levels somewhat from the approach the that the plant itself produces the of a pesticidal substance would, in Agency uses for other pesticides. For pesticidal substance rather than the general, only be accomplished at the more traditional pesticides, EPA’s risk pesticide being applied to the plant. expense of expressing other evaluation relies on, for the most part, Thus, the exposure pattern may be very agriculturally desirable traits (e.g., data generated by testing in laboratories different for plant-pesticides than for yield). EPA does not believe that levels using representative, single species traditional pesticides both because of of pesticidal substances that are the animal model systems to estimate risk how the pesticide is produced and the subject of the proposed exemption (59 end-points such as toxicity and biology of plants. . . . the potential for FR 60535) will be increased to a point carcinogenicity. Conclusions from data causing adverse health effects may be that will result in an adverse dietary generated from these single species more circumscribed than for traditional effect. EPA has extensively evaluated testing systems are then extrapolated to pesticides because, in many cases, the whether quantitative changes in levels conclusions concerning hazards to only significant route of human of the pesticidal substances that are the humans, including conclusions on exposure may be oral.’’ Several subject of the proposed exemption dietary hazards presented by chemical conditions limit the potential for would warrant regulation by the setting pesticide residues in crops and exposure to plant-pesticides as of a food tolerance. EPA has determined domestic animals used as food sources compared to traditional pesticides. that changes in the levels of these for humans. Mathematical models, as These include that: (1) Exposure with pesticidal substances present a well as experimental data, on pesticide plant-pesticides would be primarily reasonable certainty of causing no harm residues, provide information on through one route (dietary), (2) because the highest levels likely to be exposure. Exposure and hazard production of the pesticidal substance is attained in plants are not likely to result considerations are combined to quantify limited by the plant’s physiological in overall significantly different dietary the potential risk associated with a constraints, (3) plant-pesticides derived exposures. EPA does not anticipate that traditional pesticide. Safety factors are from sexually compatible plants are attempts to increase the levels of these often used in the risk assessment as an integral parts of a plant’s metabolism pesticidal substances would lead to a added measure of caution when toxicity and thus are compatible with the significantly different spectrum of data from surrogate animal testing are biological processes of other organisms. exposure than that with which there is used to estimate human toxicity. Such Because of their biotic nature, the substantial experience. safety factors are not necessary in risk pesticidal substances that are the subject The evaluation of potential dietary assessment when data on human effects of the proposed exemption do not risk associated with the pesticidal is directly available, as is the case for persist in the environment nor do they substances that are the subject of the the proposed exemption from the bioaccumulate in the tissues of living proposed exemption (59 FR 60535) were requirement of a tolerance for residues organisms. Thus, the number of routes considered within the context of the of pesticidal substances derived from of exposure that must be considered in food supply and dietary consumption sexually compatible plants. performing a risk assessment are patterns. The residues of pesticidal The approach to assessing risk reduced since the primary route of substances that are the subject of the described in the preceding paragraph is exposure to plant-pesticides will be proposed exemption are components of appropriate for analyzing risks posed by ingestion of plant tissues that contain a human diet. In developing the pesticide residues from pesticides such the pesticidal substances that are the proposal, the Agency considered that as chemical pesticides, pesticides subject of the proposed exemption. the diet includes all of the food items extracted from plants, and some types of When EPA proposed to exempt that are customarily eaten by human non-exempt plant-pesticides. For residues of pesticidal substances populations or subpopulations. The example, some chemicals used as derived from sexually compatible plants consumption of food plants is part of a pesticides may have no history of safe from the requirement of a tolerance (59 balanced and varied diet. Individuals dietary consumption because they were FR 60535), it considered health risks to recognize and are familiar with the created by humans and are synthetic. the general population, which included plant crop derived food they consume Single species animal testing may infants and children. Children and and, based on prior experience with provide the only data on the effect of infants, like adults, have been food, individuals avoid potential these pesticides on living organisms. consuming food containing the exposures to foods containing Chemical pesticides that do not occur in pesticidal substances that are the subject substances they know, either through nature, but are a product of human of the proposed exemption. There is no personal experience or through acquired intervention, may not necessarily be evidence such pesticidal substances, as knowledge, cause them problems. Since subject to the processes by which biotic a component of food, present a different the proposed exemption will not affect substances are degraded or cycled in level of dietary risk for infants and the current pattern of exposure to the nature. Thus, they may persist in the children than they would for the adult Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27137 population. EPA’s risk assessment in the may also affect EPA’s final may have a common mechanism of proposed exemption included determination on the proposed toxicity with such pesticidal substances. subgroups as part of the general exemption (59 FR 60519) under FIFRA EPA summarizes this information and population, (i.e., infants and children for plant-pesticides that are derived its analysis in Unit IV.A. of this and the effects of culture on diet), and from plants sexually compatible with supplemental notice. allowed for consumption pattern the recipient plant. With regard to the pesticidal differences of such subgroups. For 1. Validity, completeness, and substance itself, the proposal notes (59 infants and children and other reliability of available data. EPA FR at 60505) that this exemption ‘‘is subgroups, EPA relied on the human considered in 1994 the validity, based upon the premise that new experience base that it describes in completeness, and reliability of the dietary exposures would not likely arise summary form in this supplemental available data with regard to pesticidal for plant-pesticides produced in food notice. On the basis of its analysis, EPA substances derived from sexually plants if the genetic material leading to determined that a tolerance would not compatible plants in the proposals (59 the production of the plant-pesticide is be necessary to protect the health of FR 60519 and 60535) and has derived from sexually compatible infants and children because pesticidal summarized the evaluation in Unit plants.’’ Thus, the proposal would substances derived from sexually IV.A. of this supplemental notice. exempt residues of pesticidal substances compatible plants would not pose 2. Nature of toxic effect. EPA in 1994 that are normally components of (not significant new dietary exposures and considered the nature of the toxic effects new to) food from plants in sexually experience indicates that plant- caused by pesticidal substances derived compatible populations. As discussed in pesticides that are the subject of the from sexually compatible plants in the Unit IV.A. of this supplemental notice, exemption present no hazard under the proposals (59 FR 60519 and 60535) and differences in the levels of pesticidal use conditions. has summarized its evaluation in Unit substances present may occur between IV.A. of this supplemental notice. plants in a sexually compatible B. Risk Assessment in Light of 3. Relationship of studies to humans. population. EPA determined in the Amendment to FFDCA EPA in 1994 considered the available proposals that changes in the levels of After EPA issued its proposed information concerning the relationship these pesticidal substances are not exemption from the requirement of a to humans of toxic effects of pesticidal likely to result in overall significantly tolerance for plant-pesticides derived substances that are the subject of the different dietary exposures. As noted in from sexually compatible plants (59 FR proposed exemption when it issued the the proposal (59 FR at 60538) 60535), Congress enacted FQPA and proposals (59 FR 60519 and 60535) and ‘‘[e]xtensive use and experience show amended certain FFDCA provisions has summarized that evaluation in Unit the safety of foods containing these governing pesticide chemical residues IV.A. of this supplemental notice. EPA substances.’’ If, however, information and FIFRA provisions governing based its evaluation on the history of becomes available that indicates this pesticides (See Unit II. of this human consumption of food derived finding is no longer consistent with the supplemental notice). Congress revised from crop plants, and from products FFDCA exemption standard for a the specific wording of the section 408 such as meat and milk from animals that pesticidal substance in this category, standard for exemptions and provided consume forage and other crops (e.g., EPA will consider the validity of the more specific guidance regarding some corn and other grains) that contain new information and act to amend this of the factors that EPA should consider residues of pesticidal substances that tolerance exemption as necessary to in establishing such exemptions (see are the subject of the proposed protect the public health. In the 1994 Unit II. of this supplemental notice). exemption (59 FR 60535). Because proposal (59 FR at 60535), EPA is When EPA proposed the exemption for knowledge of human consumption of proposing a requirement that any person residues of pesticidal substances food derived from sexually compatible who sells or distributes plant-pesticides derived from sexually compatible plants plants was available and adequately that have been exempted must report to (59 FR 60535), it considered most of the addressed the issues of hazard and EPA any information that comes into safety factors spelled out in FQPA even exposure, the Agency did not use, for their possession regarding unreasonable though the Agency may not have the proposed exemption (59 FR 60535), adverse effects of an exempted plant- explicitly discussed all those factors data generated in the laboratory through pesticide on human health or the using the terminology specified in the animal testing. environment. FQPA amendments. This supplemental 4. Dietary consumption patterns. EPA With regard to substances in food that notice describes how the Agency took considered in the 1994 proposal (59 FR may share a common mechanism of account of most of the FQPA factors in 60535) the available information on the toxicity with the residues of the issuing its 1994 proposal to exempt varying dietary consumption patterns of pesticidal substances that are the subject pesticidal substances derived from major identifiable consumer subgroups of the proposed exemption (59 FR sexually compatible plants and as it pertains to pesticidal substances 65035), EPA considered the effects of indicates which factors were considered derived from sexually compatible these substances when it addressed the in that proposal. The information the plants. The Agency’s evaluation is safety of food. Food from plants has Agency relied on in considering these summarized in Unit IV.A. of this thousands of constituents. Thus, EPA factors is part of the public record supplemental notice. cannot rule out the possibility that the which was available to the public when 5. Available information concerning foods humans consume would also EPA issued the proposed exemption cumulative effects of the pesticide contain substances that have a common from the requirement of a food chemical residue and other substances mechanism of action with the pesticidal tolerance. The supplemental notice also that have a common mechanism of substances that are the subject of the identifies the factors that were not toxicity. In the 1994 proposal (59 FR proposed exemption. However, because considered in the proposal. Because 60535), EPA examined available sexually compatible plants share a FQPA amended FIFRA by incorporating information on the cumulative effect of common pool of genetic material, any the section 408 safety standard, pesticidal substances derived from substances that may share a common commenters should be aware that sexually compatible plants as well as mechanism of toxicity with the comments on this supplemental notice other substances present in food that pesticidal substances that are the subject 27138 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules of the proposed exemption (59 FR additional comment on that topic. exposure through the dietary route. 60535) are normally components of (not Comments are requested only on the Moreover, substances that occur new to) food from plants in sexually new issue of whether there are any naturally in food, including the compatible populations. As discussed in substances outside of the food supply pesticidal substances that are the subject the 1994 preamble and supporting that have a common mechanism of of the proposed exemption, are unlikely record for the proposal, food from plants toxicity with the residues of the to cross the barrier provided by the skin in sexually compatible populations have pesticidal substances that are the subject and thus the responses seen on rare historically been safely consumed by of the proposed exemption, and the occasions to substances in food are most humans either directly, or indirectly in effects of any such substances on human likely to be localized skin irritations. products such as meat and milk that are health. Whether these irritations are caused by derived from animals that consume 6. Aggregate exposures of consumers the pesticidal substance component of forage and other crops (e.g., corn and including non-occupational exposures. plant-pesticides is unknown but given other grains). The history of safe EPA considered the available the thousands of constituents of any consumption indicates that any information on the aggregate exposure food of plant origin, the probability that cumulative effects between substances level of consumers to pesticidal substances other than the plant- in food that may have a common substances in the plant-pesticides to be pesticides are the irritants is very high. mechanism of toxicity with the exempt in the 1994 FFDCA and FIFRA Because substances present in food are pesticidal substances that are the subject proposals (59 FR 60519 and 60535). unlikely to pass through the skin, of the proposed exemption present a This included a consideration of dermal exposures are not additive to very low probability of human risk. The exposures from dietary sources (59 FR dietary exposures. analysis made in the preceding 60535) as well as from other non- With regard to exposure through paragraph concerning potential occupational sources (59 FR 60519). As inhalation, the pesticidal substances increases in levels of pesticidal indicated in EPA’s policy statement, may in some cases be present in pollen substances apply equally to constituents ‘‘plant-pesticides are likely to present a and some individuals (those near of food that may have a common limited exposure of the pesticidal enough to farms, nurseries or other mechanism of action with the pesticidal substance to humans. In most cases, the plant-growing areas to be exposed to substances that are the subject of this predominant, if not the only, exposure wind-blown pollen) may be exposed, exemption (59 FR 60535). Variation in route will be dietary. Significant through inhalation, to the pollen. On a the levels of these substances are not respiratory and dermal exposures will per person basis, the potential amounts likely to result in overall significantly be unlikely’’ (59 FR at 60513). As of pollen involved in these exposures different dietary exposures. As noted in explained in the FFDCA and FIFRA are negligible in comparison to potential the proposal (59 FR at 60538) ‘‘plant proposals and the EPA’s policy exposure through the dietary route. varieties that meet the sexually statement (59 FR 60494) and associated Moreover, it is unlikely that exposure to compatible standard produce food that dockets, plant-pesticides present the pollen is equivalent to exposure to is safe for human consumption and/or negligible exposure of pesticidal the pesticidal substance. The pesticidal appropriate processing procedures are substances to humans outside of the substance will not in every case be widely known and routinely used by dietary route because the substances are present in the pollen. When it is present consumers in preparation of food from in the plant tissue and thus are found in pollen, the pesticidal substance will such sources.’’ However, should EPA in either within the plant or in close be integrated into the tissue of the the future identify substances with a proximity to the plant. EPA considered pollen grain. EPA cannot rule out the common mechanism of toxicity with the dietary exposure to the pesticidal possibility that in some cases, the plant-pesticides that are the subject of substances in the proposed FFDCA pesticidal substance or some piece of the proposed exemption, both FIFRA exemption (59 FR 60535) and the pesticidal substance might be bound and FFDCA give the Agency adequate summarized its evaluation in Unit IV.A. to the surface of the pollen grain (as authority to take appropriate action to of this supplemental notice. opposed to the more likely circumstance address any risks to humans health. Despite EPA’s belief that, because of of the substance being within the pollen EPA is not aware of any other the nature of plant-pesticides, there is grain). If the substance is bound to the substances outside of the food supply little likelihood of exposure other than surface of the pollen, lung or respiratory that may have a common mechanism of through the dietary route, EPA in this tract tissue in humans might be exposed toxicity with the residues of the supplemental notice sets forth in greater to the pesticidal substance. Substances pesticidal substances that are the subject detail its considerations concerning that occur naturally in pollen, including of the proposed exemption (59 FR other exposure routes. With regard to the pesticidal substances that are the 60535), although it cannot rule out the the dermal route of exposure, the subject of the proposed exemption, are possibility. Should EPA in the future pesticidal substances that are the subject unlikely to cross the barrier provided by identify substances with a common of the proposed exemption (59 FR the mucous membrane of the respiratory mechanism of toxicity other than those 60535) may in some cases be present in tract and thus are not additive to dietary found in the parts of plants used as sap or other exudates from the plant or exposure. food, both FIFRA and FFDCA give the the food and thus may present some EPA also evaluated potential non- Agency adequate authority to take limited opportunity for dermal exposure occupational exposures in drinking appropriate action to address any risks to persons coming physically into water. As noted in the preceding to humans health. contact with the plant or raw paragraphs, the substances in plants or Because EPA already considered the agricultural food from the plant. parts of plants, including the pesticidal safety of food containing residues of Individuals preparing meals are those substances that are the subject of the pesticidal substances derived from most likely to experience dermal contact proposed exemption (59 FR 60535), are sexually compatible plants and other with the substances on a non- produced inside the plant itself. The constituents of food that may share a occupational basis. However, on a per pesticidal substances are integrated into common mechanism of toxicity with person basis, the potential amounts and an integral part of the living tissue those residues when it issued the involved in these exposures are of the plant. When the plant dies or a proposal (FR 60535), it is not requesting negligible in comparison to potential part is removed from the plant, Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27139 microorganisms colonizing the tissue may contain substances that may be it will address estrogenic effects from immediately begin to digest it, using the related via a common mechanism of pesticide residues in general. components of the tissue (including any toxicity to the pesticidal substances that While there is some information on pesticidal substances in the tissue) as are the subject of the proposed estrogenic effects from exposure to building blocks for making their own exemption, indicates that adverse effects certain pesticides, the data are limited. tissues or for fueling their own due to aggregate exposure through the It is known that certain food plants metabolisms. The pesticidal substances dietary, non-food oral, dermal and contain estrogen mimics, termed that EPA proposed to exempt are subject inhalation routes occurs. phytoestrogens. Such phytoestrogens to the same processes of degradation Should EPA in the future identify are currently being consumed by and decay that all organic matter substances related via a common humans in food derived from plants. undergoes. This turnover of biochemical mechanism of toxicity to the pesticidal EPA cannot rule out the possibility that materials in nature through a process of substances that are the subject of the such phytoestrogens could be used as degradation occurs fairly rapidly. proposed exemption, FIFRA and the plant-pesticides. Potential exposure of Therefore, these pesticidal substances FFDCA provide the Agency adequate humans via consumption of plant tissue do not persist in the environment or authority to take appropriate action to to phytoestrogens exerting estrogenic bioaccumulate. There is no indication address any risks associated with those effects and used as plant-pesticides may that naturally occurring plant related substances. Substances that are need to be considered when the issue of biochemical compounds, including the isolated from the plant’s tissues, endocrine disruptors is examined by pesticidal substances that are the subject concentrated and then applied topically EPA. If dietary exposure to of the proposed exemption, are resistant as pesticides to the plant or to food phytoestrogens (that are also plant- to this degradation. Because of the fairly would not be covered by the proposed pesticides) is discovered to be a rapid turnover of these substances, even exemption (59 FR 60535), but would be significant factor, the Agency will re- if they reach surface waters (through subject to the tolerance requirements of examine this proposed exemption from pollen dispersal or parts of the plants FFDCA. the requirement of a tolerance (59 FR (leaves, fruits etc.) falling into bodies of Because the Agency already 60535) in light of that information. water), they are unlikely to present considered exposure to the pesticidal 9. Safety factors. In the 1994 proposal, anything other than a negligible substances that are the subject of the EPA did not rely on the available animal exposure in drinking water drawn from proposed exemption (59 FR 60535) and data in reaching its determination that surface water sources. Should they to substances related via a common a tolerance is not necessary to protect resist degradation long enough to enter mechanism of toxicity to these the public from pesticidal substances groundwater, they are unlikely to pesticidal substances in food when it derived from sexually compatible plants issued the proposal, it is not requesting (59 FR 60535). As discussed in Unit present anything other than a negligible additional comment on this topic. IV.A. of this supplemental notice, EPA exposure in drinking water drawn from Comments are requested only on the relied on the long history of safe human groundwater. Therefore, although a issue of whether there are additional consumption of the pesticidal potential for non-dietary exposure (i.e., substances outside that food supply that substances that are the subject of the non-food oral, dermal and inhalation) in are related, via a common mechanism of proposed exemption in food from non-occupational settings may exist, toxicity, to residues of the pesticidal sexually compatible plant populations EPA expects such exposure to be substances that are the subject of the and in food derived from animals that negligible. proposed exemption and the effects of consume forage and other crops (e.g., With regard to exposure to ‘‘other exposure to any such substances on corn and other grains). EPA continues to related substances,’’ EPA is not aware of human health. believe that long-term evidence of any other substances that may be 7. Sensitivities of subgroups. In 1994, human consumption, not animal related, via a common mechanism of EPA considered available information experimentation data, is the appropriate toxicity, to the pesticidal substances on the sensitivities of subgroups as it information base for the proposed that are the subject of the proposed pertains to the pesticidal substances exemption (59 FR 60535). Because EPA exemption (59 FR 60535), other than derived from sexually compatible plants did not rely on animal experimentation related substances that are present in in the proposal (59 FR 60535) and has data, the Agency did not consider which parts of plants used as food. Thousands summarized the evaluation in Unit safety factors would be appropriate to of substances are present in the edible IV.A. of this supplemental notice. use in assessing risk to humans based parts of plants. These may include 8. Naturally occurring estrogen or on data generated through experiments substances related, via a common other endocrine effects. FFDCA now on animals. mechanism of toxicity, to the pesticidal directs EPA, in establishing an 10. Infants and children.—a. Dietary substances that are the subject of the exemption from the requirement of a consumption patterns. In the 1994 proposed exemption. These related tolerance, to consider ‘‘such information proposal (59 FR 60535), EPA considered substances have long been accepted as as the Administrator may require on available information on the dietary part of the human diet. Extensive use whether the pesticide chemical may consumption pattern of infants and and experience show the safety of foods have an effect in humans that is similar children as pertains to the pesticidal containing these substances. It also to an effect of a naturally occurring substances derived from sexually shows the safety of these substances estrogen or other endocrine effect’’ (21 compatible plants and has summarized consumed in aggregate through the U.S.C. 346(a)(q)). Congress allowed EPA the evaluation in Unit IV.A. of this dietary route with the pesticidal 2 years to establish a screening program supplemental notice. The range of foods substances that are the subject of the to determine whether certain pesticide consumed by infants and children is in proposed exemption. With regard to chemicals may have estrogenic effects general more limited than the range of non-occupational exposure through and an additional year to implement the foods consumed by adults. Most routes other than dietary exposure, no program (21 U.S.C. 408(p)). As part of newborns rely on milk products for evidence, in the many years of human the screening and implementation nutrition, although some infants are fed experience with the growing and process, EPA is determining what soy based products. Infants begin as consumption of food from plants that information might be required and how early as 4-months of age to consume 27140 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules specific types of solid foods containing for the residues and other sources of exposure through the dietary, non-food residues of pesticidal substances that exposure to infants and children to oral, dermal and inhalation routes are the subject of the proposed account for potential pre- and post-natal occur. exemption. Subsequent to 4 months of toxicity and completeness of data on The conclusion that residues of age, apart from processing to facilitate threshold effects with respect to pesticidal substances derived from swallowing, the diets of infants are exposure and toxicity to infants and sexually compatible plants should be based on foods consumed by the general children, unless a different margin will exempt from tolerance requirements adult population albeit in different be safe. In proposing the exemption, under the FFDCA section 408 safety proportions. As infants and children EPA based its assessment of exposure standard also lends support to EPA’s mature, more and more of the foods and toxicity upon reliable information proposed FIFRA exemption (59 FR normally consumed by adults become (Ref. 1) including the long history of 60519) for plant-pesticides derived from part of their diets and the relative safe human consumption of food sexually compatible plants with respect proportions of the different types of containing residues of the pesticidal to human dietary risks. In the FIFRA food consumed changes to more closely substances that are the subject of the proposal, EPA utilized two criteria to resemble an adult diet. proposed exemption and other determine whether plant-pesticides b. Special susceptibility. In the 1994 substances in food that may have a should be exempt: (1) Whether they proposal (59 FR 60535), EPA considered common mechanism of toxicity, and the posed a low probability of risk, and (2) available information on the potential unique nature of plant-pesticides. EPA whether they caused unreasonable for susceptibility of infants and did not rely on animal data. EPA relied adverse effects on the environment. children, including pre- and post-natal on observations concerning whole food Based upon the determination that toxicity, as these factors pertain to the consumption by humans and did not residues of pesticidal substances subject pesticidal substances derived from rely on single entity testing, wherein to the proposed exemption (59 FR sexually compatible plants and has substances are isolated from a plant 60535) and the nucleic acid component summarized the evaluation in Unit source, and fed to animals at high of plant-pesticides (59 FR 60542) meet IV.A. of this supplemental notice. concentrations (Ref. 1). EPA relied on the FFDCA section 408 safety test, EPA c. Cumulative effects of residues with the vast experiential base of actual food concludes plant-pesticides derived from other substances with a common consumption patterns rather than sexually compatible plants would pose mechanism of toxicity. In the 1994 limited testing situations. EPA thus, did only a low probability of human dietary proposal (59 FR 60535), EPA examined not utilize animal or other studies that risk and also would not pose an the available information on the would yield data that could be subjected unreasonable adverse effect with respect cumulative effect of residues of to an additional margin of safety. (See to such risks. pesticidal substances derived from Units IV.A. and IV.B.3. of this sexually compatible plants as well as supplemental notice). As a result, the D. Other Considerations other substances in food that may have FQPA amendments to FFDCA do not When the Agency proposed to a common mechanism of toxicity. The affect EPA’s analysis. establish an exemption from the Agency’s consideration in the proposal requirement of a tolerance for residues of the effects of the residues of C. Safety Determinations in Light of FFDCA Amendment of pesticidal substances derived from pesticidal substances that are the subject sexually compatible plants (59 FR of the proposed exemption (59 FR Based on the information discussed in 60535), EPA did not propose any 60535) for the general population also the 1994 proposals (59 FR 60496 numerical limitation on the amount of included consideration of effects for through 60547), the discussion in Unit pesticidal substance that could be infants and children. See Unit IV.B.5. of IV.A. and the analysis in Unit IV.B. of present in food containing these this supplemental notice for a this supplemental notice, EPA residues. EPA consulted in 1994 with discussion of cumulative effects of the concludes that there is a reasonable the Department of Health and Human pesticide chemical residues and other certainty that no harm will result to the Services (DHHS) in developing the substances that have a common U.S. population in general, and U.S. proposed exemption (59 FR 60535) and infants and children, from aggregate mechanism of toxicity. this supplemental notice and will Because EPA already considered the exposure to residues of pesticidal consult with the Secretary of HHS prior safety of food containing residues of substances derived from sexually to issuing the final rule. Because the pesticidal substances derived from compatible plants, including all 1994 proposal was for the exemption sexually compatible plants and other anticipated dietary exposures and all from the requirement of a tolerance, the constituents of food when it issued the other exposures for which there is Agency has concluded that an analytical proposal (FR 60535), the Agency is not reliable information. Under the method for detecting and measuring the requesting additional comment on that proposed exemption from the levels of the residues of the subject topic. Comments are requested only on requirement for a tolerance (59 FR pesticidal substances in or on food is the new issue of whether there are any 60535), EPA would exempt residues of not required. substances outside of the food supply pesticidal substances that are normally with a common mechanism of toxicity components of (not new to) food from V. Comments to the residues of the pesticidal plants in sexually compatible A. Confidential Business Information substances that are the subject of the populations. Extensive use and proposed exemption and the effects of experience show the safety of foods Information submitted as comments any such substances on infants and containing these substances. No concerning this supplemental notice children. evidence, in the many years of human may be claimed confidential by marking d. Margin of safety. In determining experience with the growing and any part or all of that information as whether the residues of the pesticidal consumption of food from plants ‘‘Confidential Business Information’’ substances that are the subject of the containing the pesticidal substances that (CBI). CBI should not be submitted proposed exemption (59 FR 60535) are are the subject of the proposed through e-mail. Information marked as safe, FFDCA section 408(b)(2)(C) directs exemption (59 FR 60535), indicates that CBI will not be disclosed except in EPA to apply a tenfold margin of safety adverse effects due to aggregate accordance with procedures set forth in Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27141

40 CFR part 2. A copy of the comment exposure. Commenters are asked to information claimed as CBI, is available that does not contain CBI must be describe routes through which such for inspection from 8:30 a.m. to 4 p.m., submitted for inclusion in the public exposure might occur, including Monday through Friday, excluding legal record. Information not marked exposure to major identifiable holidays. The official rulemaking record confidential may be disclosed publicly subgroups of human populations (e.g., is located at the address in by EPA without prior notice. infants and children). If such routes are ‘‘ADDRESSES’’ at the beginning of this identified, commenters are requested to B. 30–Day Comment Period document. provide information on the nature and Electronic comments can be sent EPA is allowing a 30–day comment levels of the expected exposure. directly to EPA at: period because it has determined that Entities may also offer comments on such a period will provide the public issues V.C.1. and V.C.2. above as they [email protected] with an adequate opportunity to apply to Option 2 as described in the Electronic comments must be respond to the additional issues raised November 23, 1994 Federal Register (59 submitted as an ASCII file avoiding the in this supplemental notice. FFDCA and FR at 60537) ‘‘Plant-pesticides derived use of special characters and any form FIFRA do not specify a comment period from plants within the same genus or of encryption. Comment and data will for this type of notice. EPA has decided from sexually compatible plants’’ under also be accepted on disks in that a 30–day comment period is the revised FFDCA section 408 safety Wordperfect 5.1 file format or ASCII file reasonable because this supplemental standard. The Agency will not consider format. All comments and data in notice raises very few new issues that comments that address issues or electronic form must be identified by were not already available for public information already presented for public the docket control number ‘‘OPP– comment. As discussed in Unit IV. of comment in the proposed rule issued in 300368A.’’ Electronic comments on this this supplemental notice, EPA the November 23, 1994, Federal supplemental notice may be filed online effectively considered most of the Register. at many Federal Depository Libraries. factors required by the FQPA Commenters who possess information VII. References amendments of FFDCA and FIFRA on substances occurring in food that relevant to the proposed exemptions may have estrogenic effects and may be (1) International Food Biotechnology when it issued the proposed package of used as plant-pesticides are requested to Council, 1990. Biotechnologies and notices describing EPA’s approach in send such information to EPA. food; Assuring the safety of foods 1994 (59 FR 60496, 60519, 60535, 60542 In this supplemental notice, EPA produced by genetic modification. In: and 60545). At that time, the public had describes in greater detail the rationale Regulatory Toxicology and an opportunity to review both the supporting the statement made in the Pharmacology. Vol 12. Academic Press, Agency’s rationale for the proposals and 1994 Federal Register (59 FR at 60513) New York. the underlying support documents that ‘‘plant-pesticides are likely to VIII. Regulatory Assessment during a 90–day public comment present a limited exposure of pesticidal Requirements period. Only a limited number of new substances to humans. In most cases, issues have been raised by the FQPA the predominant, if not the only route This supplemental notice merely amendments to FFDCA and FIFRA and of exposure will be dietary. Significant seeks additional comments on the the Agency continues to rely upon the respiratory and dermal exposures will proposed rules with regard to the information already in the docket for the be unlikely.’’ No comments were potential impact that the new statutory 1994 proposals and thus 30 days should received on this statement during the amendments imposed by the August 3, provide adequate time for public official comment period. Commenters 1996 Food Quality Protection Act comment. In addition, EPA believes that may comment on this more detailed (FQPA) might have on the provisions as it is in the interest of the public to rationale. proposed. As such, this notice does not publish the final exemption from the In this supplemental notice, EPA also contain any new proposed requirements requirement of a tolerance in a timely describes in greater detail how the that would require additional manner. rationale presented in the 1994 Federal consideration by the Office of Register (59 FR at 60538) concerning the Management and Budget (OMB) under C. Request for Comments safety for human consumption of food Executive Order 12866, entitled Interested persons are invited to from plants that meet the sexually Regulatory Planning and Review (58 FR submit written comments on the new compatible standard applies to infants 51735, October 4, 1993) or the issues raised in this supplemental and children. No comments were Paperwork Reduction Act (PRA), 44 notice specifically on: received on this statement during the U.S.C. 3501 et seq. It does not require (1) Whether there are substances, official comment period. Commenters any other action under Executive Order outside of the food supply, sharing a may comment on this more detailed 12875, entitled Enhancing the common mechanism of toxicity with rationale specifically addressing infants Intergovernmental Partnership (58 FR pesticidal substances that are derived and children as part of the larger human 58093, October 28, 1993), Executive from sexually compatible plants. population. Order 12898, entitled Federal Actions to Commenters are asked to submit Address Environmental Justice in information on the cumulative effects of VI. Public Docket Minority Populations and Low-Income such substances and the pesticidal The official record for this Populations (59 FR 7629, February 16, substances that are the subject of the rulemaking, as well as the public 1994), or the Regulatory Flexibility Act proposed exemption (59 FR 60535). version, has been established for this (RFA) (5 U.S.C. 601 et seq.). The (2) Whether there are substances, rulemaking under docket control Agency’s activities related to these outside of the food supply, related via number ‘‘OPP–300368A’’ (including regulatory assessment requirements are a common mechanism of toxicity to comments and data submitted discussed in the proposed rules. pesticidal substances that are derived electronically as described below). A EPA did not consider Title II of the from sexually compatible plants, to public version of this record, including Unfunded Mandates Reform Act of 1995 which humans might be exposed printed, paper versions of electronic (UMRA) (Pub. L. 104-4) at the proposal through non-occupational routes of comments, which does not include any stage because the proposed rules were 27142 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules issued prior to its enactment. Although the requirement of a tolerance for 1994, Federal Register notices. The this supplemental notice is not subject residues of nucleic acids produced in notices defined a ‘‘plant-pesticide’’ as ‘‘a to UMRA because it neither proposes or plants as part of a plant-pesticide. EPA pesticidal substance that is produced in finalizes any regulatory requirements, believes that it considered most of the a living plant and the genetic material the applicability of the UMRA substantive issues associated with the necessary for the production of the requirements will be addressed in the FQPA amendments when it issued the pesticidal substance where the final rules. proposal in 1994. EPA is, thus, in this pesticidal substance is intended for use in the living plant’’ (59 FR at 60534). List of Subjects in 40 CFR Part 180 document, specifically seeking comment only on its evaluation of the One of the five documents (59 FR Environmental protection, requirements imposed by FQPA that the 60542) proposed to exempt from the Administrative practice and procedure, Agency did not address in the proposal. requirement of a tolerance residues of Agricultural commodities, Pesticides DATES: Comments, identified by the nucleic acids (i.e., deoxyribonucleic and pests, Plants, Plant-pesticides, docket control number ‘‘OPP– acid (DNA) and ribonucleic acid (RNA)) Reporting and recordkeeping 300371A,’’ must be received on or when such nucleic acids are produced requirements. before June 16, 1997. in plants as part of a plant-pesticide (i.e., the genetic material necessary to Dated: May 7, 1997. ADDRESSES: By mail, submit written produce the pesticidal substance). This Lynn R. Goldman comments to: Public Information and supplemental notice addresses the Assistant Administrator for Prevention, Records Integrity Branch, Information nucleic acids portion of plant-pesticides Pesticides and Toxic Substances. Resources and Services Division produced in food plants. Because FQPA (7506C), Office of Pesticide Programs, [FR Doc. 97–12784 Filed 5–15–97; 8:45 am] modified FIFRA ( 7 U.S.C. 136 et seq.) Environmental Protection Agency, 401 BILLING CODE 6560±50±F by incorporating the FFDCA safety M St., SW., Washington, DC 20460. In standard into the FIFRA test for person deliver comments to: Rm. 1132, determining whether a pesticide poses ENVIRONMENTAL PROTECTION Crystal Mall #2, 1921 Jefferson Davis an unreasonable adverse effect, AGENCY Highway, Arlington, VA 22202. comments on this supplemental notice Comments and data may also be may also affect EPA’s final 40 CFR Part 180 submitted electronically by following determination on proposed exemptions the instructions under Unit VI. of this [OPP±300371A; FRL±5716±7] under FIFRA for three categories of document. No Confidential Business plant-pesticides (59 FR at 60535): (1) RIN 2070-AC02 Information (CBI) should be submitted Those that are derived from a plant that through e-mail. Plant-Pesticides; Nucleic Acids; is sexually compatible with the Supplemental Notice of Proposed FOR FURTHER INFORMATION CONTACT: recipient plant, (2) those that act Rulemaking Elizabeth Milewski, Office of Science, primarily by affecting the plant, and (3) Coordination and Policy, Office of those that are coat proteins from plant AGENCY: Environmental Protection Prevention, Pesticides and Toxic viruses. Agency (EPA). Substances (7101), Environmental EPA is publishing this supplemental ACTION: Supplemental notice of Protection Agency, 401 M St., SW., notice to ensure that the public has had proposed rulemaking. Washington, DC 20460, Telephone: adequate opportunity to comment on (202) 260-6900, e-mail: certain new considerations raised by the SUMMARY: This document announces the [email protected]. FQPA amendments to FFDCA as these availability of information for additional SUPPLEMENTARY INFORMATION: considerations relate to the proposed public comment regarding a proposed I. Introduction exemption from a tolerance for residues exemption from the requirement of a of the nucleic acid portion of plant- tolerance under the Federal Food, Drug, EPA issued in the November 23, 1994 pesticides produced in food plants. In and Cosmetic Act (FFDCA) for residues Federal Register a package of five evaluating a pesticide chemical residue of nucleic acids (i.e., deoxyribonucleic separate Federal Register proposals (59 for exemption from FFDCA tolerance acid and ribonucleic acid) produced in FR 60496, 60519, 60535, 60542 and requirements, EPA must now explicitly plants as part of a plant-pesticide. 60545) (FRL–4755–2, FRL–4755–3, address certain factors, and make a Comments on this document may also FRL–4758–8, FRL–4755–5, and FRL– determination that there is a reasonable affect EPA’s final determination on 4755–4) which together described EPA’s certainty that aggregate exposure to the three proposed exemptions under the approach to substances produced in residue will cause no harm to the Federal Insecticide, Fungicide, and plants that enable the plants to resist public. The factors to be considered are Rodenticide Act (FIFRA). In 1994, EPA pests or disease. EPA’s package of iterated in Unit II. of this supplemental proposed to exempt from the proposals indicated that these notice. EPA’s evaluation of these factors requirement of tolerance residues of substances are pesticides under section relative to the proposed exemption (59 nucleic acids produced in plants as part 2 of FIFRA (7 U.S.C. 136(u)) if they are FR 60535) is contained in Unit IV. of of a plant-pesticide because such a ‘‘intended for preventing, destroying, this supplemental notice. Consistent tolerance would not be necessary to repelling, or mitigating any pest’’ or if with FFDCA section 408(c)(2)(B), EPA protect the public health. Since they are ‘‘. . . intended for use as a plant has reviewed the available scientific publication of the proposal, Congress regulator, defoliant, or desiccant’’ data and other relevant information in enacted the Food Quality Protection Act regardless of whether the pesticidal support of this action. In today’s (FQPA) which amended FFDCA and capabilities evolved in the plants or supplemental notice, EPA requests FIFRA. EPA is issuing this document were introduced by breeding or through comment only on the new conclusions today to provide the public with an the techniques of modern identified in Unit V.C. opportunity to comment on EPA’s biotechnology. These substances, and In light of FQPA, EPA is engaged in analysis of how certain FQPA the genetic material necessary to a process, including consultation with amendments to FFDCA and FIFRA produce them, were designated ‘‘plant- registrants, states, and other interested apply to the proposed exemption from pesticides’’ by EPA in the November 23, stakeholders, to make decisions on the Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27143 new policies and procedures that will the term ‘‘unreasonable adverse effects 2. Nature of any toxic effect shown to be appropriate as a result of enactment on the environment’’ to mean (1) any be caused by the pesticide chemical or of FQPA. In establishing this exemption unreasonable risk to man or the residues in studies. from the requirement of a tolerance for environment, taking into account the 3. Available information concerning residues of nucleic acids produced in economic, social, and environmental the relationship of the results of such plants as part of a plant-pesticide, EPA costs and benefits of the use of any studies to human risk. does not intend to set precedents for the pesticide, or (2) a human dietary risk 4. Available information concerning application of section 408 and the new from residues that result from a use of the dietary consumption patterns of safety standard to other tolerances and a pesticide in or on any food consumers (and major identifiable exemptions. This exemption from the inconsistent with the standard under subgroups of consumers). requirement of a tolerance will not section 408 of the FFDCA. Thus, a 5. Available information concerning restrict EPA’s options with regard to pesticide used in or on food that does the cumulative effects of such residues general procedures and policies for not meet the FFDCA section 408 safety and other substances that have a implementation of the amended FFDCA standard also would pose an common mechanism of toxicity. section 408. unreasonable adverse effect under 6. Available information concerning II. Statutory Authority FIFRA and would not qualify for an the aggregate exposure levels of exemption from the requirements of consumers to the pesticide chemical Under FFDCA, EPA regulates FIFRA under FIFRA section 25(b)(2). residue and to other related substances, pesticide chemical residues by including dietary exposure and non- establishing tolerances limiting the FQPA amends FFDCA section occupational exposures. amounts of residues that may be present 408(c)(2)(A)(i) to allow EPA to establish 7. Available information concerning in food, or by establishing exemptions an exemption from the requirement of a the variability of the sensitivities of from the requirement of a tolerance for tolerance for a ‘‘pesticide chemical major identifiable subgroups of such residues. Pesticide chemical residue’’ only if EPA determines that the residues subject to regulation under exemption is ‘‘safe’’ (21 U.S.C. consumers. FFDCA are defined by reference to the 346a(c)(2)(A)(i)). Section 408(c)(2)(A)(ii) 8. Such information as the definition of pesticide under FIFRA. defines ‘‘safe’’ to mean that ‘‘there is a Administrator may require on whether FFDCA section 201(q)(1) defines a reasonable certainty that no harm will the pesticide chemical may have an ‘‘pesticide chemical residue’’ to mean result from aggregate exposure to the effect in humans that is similar to an the residue in or on food of a pesticide pesticide chemical residue, including effect produced by a naturally-occurring chemical or other added substance all anticipated dietary exposures and all estrogen or other endocrine effects. resulting primarily from the metabolism other exposures for which there is 9. Safety factors which in the opinion or degradation of a pesticide chemical reliable information’’ (21 U.S.C. of experts qualified by scientific training (21 U.S.C. 321 (q)(2)). A ‘‘pesticide 346a(c)(2)(A)(ii)). This includes and experience to evaluate the safety of chemical’’ means ‘‘any substance that is exposure through drinking water, but food additives are generally recognized a pesticide within the meaning of the does not include occupational exposure. as appropriate for the use of animal Federal Insecticide, Fungicide, and In establishing an exemption from the experimentation data (21 U.S.C. Rodenticide Act, including all active requirement of a tolerance, FFDCA 346a(b)(2)(D)). and inert ingredients of such pesticide’’ section 408(c), like the statute prior to Additionally, with respect to (21 U.S.C. 321(q)(1)). FQPA, does not require EPA to consider exposure of infants and children, FIFRA authorizes EPA to regulate the benefits that might be associated with consistent with section 408(b)(2)(C), sale and distribution of pesticides in the use of the pesticide chemical. EPA must assess the risk of the pesticide United States and to exempt a pesticide FFDCA section 408 requires EPA to based on available information from the requirements of FIFRA if it is give special consideration to exposure concerning: not of a character requiring regulation (7 of infants and children to the pesticide 1. Consumption patterns that are U.S.C. 136a(a) and 136w(b)). FIFRA chemical residue in establishing an likely to result in disproportionately section 2(u) defines ‘‘pesticide’’ as: (1) exemption and to ‘‘ensure that there is high consumption of food with ‘‘any substance or mixture of substances a reasonable certainty that no harm will pesticide residues. intended for preventing, destroying, result to infants and children from 2. Special susceptibility of infants and repelling, or mitigating any pest, (2) any aggregate exposure to the pesticide children to such residues. substance or mixture of substances chemical residue’’ (21 U.S.C. 3. Cumulative effects of residues with intended for use as a plant regulator, 346a(b)(2)(C)(ii)(I)) and (c)(2)(B). Section other substances that have a common defoliant, or desiccant, and (3) any 408(b)(2)(D) specifies other, general mechanism of toxicity (21 U.S.C. nitrogen stabilizer’’ (7 U.S.C. 136(u)). factors EPA is to consider in 346a(b)(2)(C) and (c)(2)(B)). FQPA amends both FFDCA and establishing an exemption. Section III. Summary of Proposed Regulation FIFRA. FQPA, which took effect on 408(c)(3)(B) prohibits an exemption August 3, 1996, among other things, unless there is either a practical method The proposal (59 FR 60542) described amends FIFRA such that a registration for detecting and measuring levels of how EPA would view: (1) cannot be issued for a pesticide to be pesticide chemical residue in or on food Deoxyribonucleic acid (DNA) and used on or in food unless the residue of or there is no need for such a method ribonucleic acid (RNA), (2) nucleic acid the pesticide in food qualifies for a (21 U.S.C. 346a(c)(3)(B)). analogues (e.g., altered purine or tolerance or exemption from the pyrimidine bases) that may be requirement for a tolerance. FQPA Specifically, EPA must consider the considered ‘‘nucleic acids’’ by their modified FIFRA section 2(bb) by following in deciding whether to grant chemical composition, and (3) DNA incorporating the FFDCA section 408 an exemption: sequences that code for the RNA safety standard into the test for 1. The validity, completeness, and complement (anti-sense) of the determining whether a pesticide poses reliability of the available data from messenger RNA (mRNA) for an essential an unreasonable adverse effect (7 U.S.C. studies of the pesticide chemical and enzyme or other component of an 136(bb)). FIFRA section 2(bb) defines chemical pesticide residue. obligate parasite. 27144 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules

In the November 23, 1994 Federal and such nucleic acids would qualify will have the potential to produce the Register, EPA proposed to exempt for this food tolerance exemption. pesticidal substance. nucleic acids (i.e., deoxyribonucleic Nucleic acids are widespread in foods IV. Risk Assessment and Safety acid (DNA) and ribonucleic acid (RNA)) and have not, by themselves, been Determinations from the requirement of a tolerance associated with toxic or pathogenic when such nucleic acids are produced A. Risk Assessment in Proposal effects on animals or humans. None of the constituents of nucleic acids are in plants as part of a plant-pesticide (59 This unit reviews the analysis that known to be acute toxicants, but like FR 60542). In the proposal, EPA stated EPA used to support its 1994 proposal proteins and other normal constituents that the proposed exemption from the (59 FR 60535) to exempt nucleic acids of food, may cause indirect, adverse requirement of a tolerance for the (DNA and RNA, including DNA and metabolic effects if consumed nucleic acids portion of plant-pesticides RNA used in anti-sense technology) exclusively at high doses over a long produced in food plants is based on the produced in plants as part of a plant- period of time in the absence of a ubiquity of nucleic acids in all forms of pesticide from the requirement of a life, their presence in human and normal balanced diet. Nucleic acids tolerance under FFDCA. EPA also relied never occur at these high amounts in domestic animal food and the upon the analysis in the 1994 FFDCA consequent large scale exposure of the food plants and have not been proposal to evaluate human dietary associated with any toxic effects related human population with no evidence risks in support of its proposal (59 FR nucleic acids have caused any adverse to consumption of foods. 60519) to exempt three categories of In the proposal, the Agency made health effects when consumed as part of plant-pesticides (59 FR at 60535) from a food plant. The Agency knows of no clear that it is not proposing to exempt most FIFRA requirements. Non-dietary nucleic acid analogues from the instance where nucleic acids naturally human risks from exposure to nucleic occurring in plants have been associated requirement of a food tolerance. These acids as part of plant-pesticides were analogues are not naturally occurring with any toxic effects related to the examined under the analysis for the consumption of foods. and those used as therapeutic agents proposed FIFRA exemption and are frequently have significant toxicity In the 1994 proposal, EPA recognized discussed in this supplemental notice associated with their use. The intent of that nucleic acid analogues (e.g., altered only as they pertain to the dietary risks. EPA’s 1994 proposal was to exempt purine or pyrimidine bases) may be EPA’s 1994 proposal (59 FR 60542) to only the naturally occurring, non- considered ‘‘nucleic acids’’ by their exempt nucleic acids produced in modified nucleic acids, and polymers of chemical composition. Certain plants as part of a plant-pesticide from such substances, commonly found in analogues are being developed as the requirement of a tolerance was living cells that serve as the therapeutic agents for human diseases based on the ubiquity of nucleic acids mechanisms of encoding traits and nucleic acid analogues could and their presence in human and associated with pesticidal substances conceivably be developed as pesticides. domestic animal food without observed produced by plants. The proposed exemption does not adverse health effects. EPA proposed to extend this extend to such nucleic acid analogues. Nucleic acids encode the information exemption (59 FR 60542) from the The 1994 proposal only proposed to necessary for the functioning of the requirement of a tolerance to the mRNA exempt the naturally occurring, non- organism. Chemically, nucleic acids used in anti-sense technology based on modified nucleic acids (ribosides or occur in two types: deoxyribonucleic the consideration that these mRNAs are deoxyribosides of A, T, G, C, and U) and acid (DNA) and ribonucleic acid (RNA). analogous to naturally occurring, non- polymers of such substances commonly DNA and RNA can be thought of as a modified nucleic acid polymers found in living cells that encode the ‘‘tape’’ containing information. DNA commonly found in living cells. The information necessary to make the and RNA are polymers composed of rationale applied in the proposal to pesticidal substances produced by small units, called ‘‘nucleotides.’’ A other naturally occurring, non-modified plants. nucleotide is made up of a sugar, a nucleic acid polymers applies equally to The 1994 proposal also discussed phosphate group, and one of four these mRNAs; the ubiquity of nucleic how EPA proposed to view the heterocyclic bases. The heterocyclic acids and their presence in human and introduction into plants of DNA bases in DNA are adenine, thymine, domestic animal food and no observed sequences that code for the RNA cytosine, and guanine. The heterocyclic adverse health effects associated with complement (anti-sense) of the bases in RNA are adenine, uracil, consumption of foods containing messenger RNA (mRNA) for an essential cytosine and guanine. The sugars and nucleic acids. enzyme or component of an obligate phosphates form a long chain or parasite. One mechanism by which this ‘‘backbone’’ with one heterocyclic base B. Risk Assessment in Light of RNA complement or anti-sense RNA is attached to each sugar. The information Amendment to FFDCA believed to work is to bind to the target encoded in the nucleic acid is After EPA issued its proposed mRNA and prevent it from binding to determined by the sequence in which exemption from the requirement of a ribosomes, effectively terminating the heterocyclic bases are attached to tolerance for nucleic acids produced in synthesis of the essential enzyme or the sugar-phosphate backbone. Thus, plants as part of a plant-pesticide (59 FR other enzymes for making other the ‘‘genetic material necessary for the 60542), Congress enacted FQPA and essential cellular components necessary production of the pesticidal substance’’ amended certain FFDCA provisions to survival of the parasite. This are the nucleic acids encoding the governing pesticide chemical residues methodology is currently being information necessary for a plant cell to and FIFRA provisions governing developed for introducing pest- make the pesticidal substance. pesticides (See Unit II. of this resistance into plants. As was noted in Nucleic acids are also the chemical supplemental notice). Congress revised the proposed exemption, the Agency basis for heritable traits. When nucleic the specific wording of the section 408 believes that the introduction and acids encoding the genetic information standard for exemptions and provided expression in plants of nucleic acids in needed for the production of a more specific guidance regarding some this anti-sense technology do not pesticidal substance is stably integrated of the factors that EPA should consider present a hazard to the public health into the plant, that plant and its progeny in establishing such exemptions (see Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27145

Unit II. of this supplemental notice). of nucleic acids in all consumed foods with nucleic acids produced in plants as When EPA proposed the exemption for (Ref. 1) and the history of human part of a plant-pesticide since nucleic residues of nucleic acids produced in consumption of food derived from crop acids in plant food are not toxic. EPA plants as part of a plant-pesticide (59 FR plants, and from products such as meat has identified nucleic acid analogues as 60535), it considered most of the safety and milk from animals that consume substances having some level of factors spelled out in FQPA even though forage and other crops (e.g., corn and toxicity; however, their mechanism of the Agency may not have explicitly other grains) that contain residues of toxicity is not cumulative with that of discussed all those factors using the nucleic acids. EPA determined in the naturally occurring nucleic acids (DNA terminology specified in the FQPA proposal that nucleic acids produced in and RNA). amendments. This supplemental notice plants as part of a plant-pesticide do not EPA considered the safety of foods describes how the Agency took account have a toxic effect and have no adverse containing residues of nucleic acids of most of the FQPA factors in issuing effects to humans. Because knowledge when it issued the proposal and is not its 1994 proposal to exempt from the of human consumption of food requesting additional comment on that requirement of a tolerance nucleic acids containing nucleic acids was available topic. Comments are only requested on produced in plants as part of a plant- and adequately addressed the issues of EPA’s conclusion that there are no pesticide, and indicates which factors hazard and exposure, the Agency did substances outside of the food supply were considered in that proposal. The not use, for the proposed exemption (59 that may have a cumulative toxic effect information the Agency relied on in FR 60542), data generated in the with residues of nucleic acids produced considering these factors is part of the laboratory through animal testing. in plants as part of a plant-pesticide. public record which was available to the 4. Dietary consumption patterns. EPA 6. Aggregate exposures of consumers public when EPA issued the proposed considered in the 1994 proposal the including non-occupational exposures. exemption from the requirement of a available information on the varying EPA considered the available food tolerance. The supplemental notice dietary consumption patterns of major information on the aggregate exposure also identifies the factors that were not identifiable consumer subgroups as it level of consumers to nucleic acids considered in the proposal. Because pertains to nucleic acids in food from produced in plants as part of a plant- FQPA amended FIFRA by incorporating plants. As described in the 1994 pesticide in the 1994 FFDCA and FIFRA the section 408 safety standard, proposal, nucleic acids are ubiquitous proposals (59 FR 60519 and 60542). commenters should be aware that in nature and in the food supply. This included a consideration of comments on this supplemental notice Nucleic acids that make up the genetic exposures from dietary sources (59 FR may also affect EPA’s final material in plant-pesticides will not 60542) as well as from other non- determination on the proposed alter this baseline consumption pattern occupational sources (59 FR 60519). As exemptions (59 FR at 60535) under of nucleic acids. The Agency’s indicated in EPA’s policy statement, FIFRA for three categories of plant- evaluation is summarized in Unit IV.A. ‘‘plant-pesticides are likely to present a pesticides: (1) Those that are derived of this supplemental notice. limited exposure of the pesticidal from plants sexually compatible with 5. Available information concerning substance to humans. In most cases, the the recipient plant, (2) those that act cumulative effects of the pesticide predominant, if not the only, exposure primarily by affecting the plant, and (3) chemical residue and other substances route will be dietary. Significant those that are coat proteins from plant that have a common mechanism of respiratory and dermal exposures will viruses. toxicity. EPA in 1994 examined the be unlikely’’ (59 FR at 60513). As 1. Validity, completeness, and available information on the cumulative explained in the FFDCA and FIFRA reliability of available data. EPA effect of nucleic acids in food from proposals and EPA’s policy statement considered in 1994 the validity, plants and other substances that have a (59 FR 60496) and associated dockets, completeness, and reliability of the common mechanism of toxicity. EPA plant-pesticides present negligible available data with regard to nucleic summarizes this information and its exposure of pesticidal substances to acids produced in plants as part of a analysis in Unit IV.A. of this humans outside of the dietary route plant-pesticide in the proposals (59 FR supplemental notice. because the substances are in the plant 60519 and 60542) and has described the Nucleic acids are widespread in food tissue and thus are found either within evaluation in Unit IV.A. of this and have not been associated with the plant or in close proximity to the supplemental notice. direct toxic or pathogenic effects to plant. This is particularly true for the 2. Nature of toxic effect. EPA in 1994 animals or humans. Because nucleic nucleic acid portion of plant-pesticides. considered the nature of the toxic effects acids in foods have no human toxicity, EPA considered dietary exposure to caused by nucleic acids produced in no cumulative effects can be identified nucleic acids produced in plants as part plants as part of a plant-pesticide in the for nucleic acids produced in plants as of a plant-pesticide in the proposed proposals (59 FR 60519 and 60542) and part of a plant-pesticide. FQPA also FFDCA exemption (59 FR 60542) and has described its evaluation in Unit directs the Agency to examine whether summarized its evaluation in Unit IV.A. IV.A. of this supplemental notice. there are other substances that have a of this supplemental notice. 3. Relationship of studies to humans. common mechanism of toxicity with Despite EPA’s belief that, because of EPA in 1994 considered the available nucleic acids produced in plants as part the nature of nucleic acids produced in information concerning the relationship of a plant-pesticide. Based on available plants as part of a plant-pesticide, there of available data on toxicity of nucleic information which indicates that is little likelihood of exposure other acids produced in plants as part of a nucleic acids in food have no human than through the dietary route, EPA in plant-pesticide to humans when it toxicity, EPA is not aware of any other this supplemental notice sets forth in issued the proposal to exempt these substances that might have a common greater detail its considerations substances from the requirement of a mechanism of human toxicity with concerning other exposure routes. With tolerance. EPA has summarized its nucleic acids produced in plants as part regard to the dermal route of exposure, evaluation in Unit IV.A. of this of a plant-pesticide. nucleic acids produced in plants as part supplemental notice. The nature of the EPA is not aware of any substances of a plant-pesticide may in some cases toxic effect of nucleic acids was outside of the food supply that may be present in sap or other exudates from assessed in light of the known presence have a common mechanism of toxicity the plant or the food and thus may 27146 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules present some limited opportunity for a process of degradation occurs fairly 8. Naturally occurring estrogen or dermal exposure to persons coming rapidly. Indeed, nucleic acids are highly other endocrine effects. FFDCA now physically into contact with the plant or unstable outside of the cellular directs EPA, in establishing an raw agricultural food from the plant. environment and are very quickly exemption from the requirement of a Individuals preparing meals are those broken down. Therefore, nucleic acids tolerance, to consider ‘‘such information most likely to experience dermal contact produced in plants as part of a plant- as the Administrator may require on with the substances on a non- pesticide do not persist in the whether the pesticide chemical may occupational basis. However, on a per environment or bioaccumulate. There is have an effect in humans that is similar person basis, the potential amounts no indication that naturally occurring to an effect of a naturally occurring involved in these exposures are nucleic acids produced in plants as part estrogen or other endocrine effect’’ (21 negligible in comparison to potential of plant-pesticides, are resistant to this U.S.C. 346(a)(q)). Congress allowed EPA exposure through the dietary route. degradation. Because of the very rapid 2 years to establish a screening program Moreover, substances that occur turnover of these substances, even if to determine whether certain pesticide naturally in food, including the nucleic they reach surface waters (e.g., through chemicals may have estrogenic effects acids produced in plants as part of plant parts falling into bodies of water), and an additional year to implement the plant-pesticides, are unlikely to cross they are unlikely to present anything program (21 U.S.C. 408(p)). As part of the barrier provided by the skin. This is other than a very negligible exposure in the screening and implementation particularly true for nucleic acids drinking water drawn either from process, EPA is determining what produced in plants as part of a plant- surface or ground water sources. information might be required and how pesticide as they are large polymers. Therefore, the potential for non-dietary it will address estrogenic effects from With regard to exposure through exposure (i.e., non-food oral, dermal pesticide residues in general. inhalation, nucleic acids produced in and inhalation) in non-occupational Based on available information plants as part of a plant-pesticide may settings is extremely limited and EPA concerning their structure and mode of in some cases be present in pollen and expects such exposure to be negligible. action, EPA does not expect nucleic some individuals (those near enough to With regard to exposure to ‘‘other acids produced in plants as part of a farms, nurseries, or other plant-growing related substances,’’ EPA is not aware of plant-pesticide to cause estrogen or areas to be exposed to wind-blown any other substances either in food or other endocrine effects. There is some pollen) may be exposed, through outside the food supply that may be information on estrogenic effects by inhalation, to the pollen. On a per related, via a common mechanism of exposure to pesticides but the data are person basis, the potential amounts of toxicity, to nucleic acids produced in limited and do not pertain to nucleic pollen involved in these exposures are plants as part of a plant-pesticide since acids. If EPA becomes aware of a potential for estrogenic or endocrine negligible in comparison to potential nucleic acids are not toxic. With regard exposure through the dietary route. effect from exposure to nucleic acids to non-occupational exposure through Moreover, it is unlikely that exposure to produced in plants as part of a plant- routes other than dietary exposure, the pollen is equivalent to exposure to pesticide, EPA will reexamine this since nucleic acids have no mechanism nucleic acids produced in plants as part tolerance exemption in light of that of toxicity, EPA is not aware of of a plant-pesticide. In pollen, nucleic information. substances in food or outside the food acids will likely be integrated into the 9. Safety factors. In the 1994 proposal, supply that may be related via a tissue of the pollen grain and not bound EPA did not rely on the available animal common mechanism of toxicity to the to the surface of the pollen grain. Pollen data in reaching its determination that nucleic acids that are produced in grains and the substances that occur a tolerance is not necessary to protect plants as a plant-pesticide. No evidence naturally in pollen are unlikely to cross the public from nucleic acids produced the barrier provided by the mucous indicates that adverse effects due to in plants as part of a plant-pesticide (59 membrane of the respiratory tract and aggregate exposure of nucleic acids with FR 60542). As discussed in Unit IV.A. thus are not additive to dietary these substances through the dietary, of this supplemental notice, EPA relied exposure. non-food oral, dermal and inhalation on the long history of safe human EPA also evaluated potential non- routes occurs. consumption of food containing nucleic occupational exposures in drinking EPA considered exposure to nucleic acids produced in plants as part of a water. As noted in the preceding acids produced in plants as a part of a plant-pesticide and in food derived from paragraphs, the substances in plants or plant-pesticide when it issued the animals that consume forage and other parts of plants, including nucleic acids proposal and it is not requesting crops (e.g., corn and other grains). EPA produced in plants as part of a plant- additional comment on this topic. continues to believe that long-term pesticide, are produced inside the plant Comments are requested only on EPA’s evidence of human consumption, not itself. Nucleic acids are an integral part conclusion that there are no additional animal experimentation data, is the of the living tissue of the plant. When substances outside the food supply that appropriate information base for the the plant dies or a part is removed from are related, via a common mechanism of proposed exemption (59 FR 60542). the plant, microorganisms colonizing toxicity, to residues of nucleic acids Because EPA did not rely on animal the tissue immediately begin to digest it, produced in plants as part of a plant- experimentation data, the Agency did using the components of the tissue pesticide for which EPA must consider not consider which safety factors would (including nucleic acids produced in exposure in aggregate with nucleic be appropriate to use in assessing risk plants as part of plant-pesticides) as acids. to humans based on data generated building blocks for making their own 7. Sensitivities of subgroups. In 1994, through experiments on animals. tissues or for fueling their own EPA considered available information 10. Infants and children.—a. Dietary metabolisms. Nucleic acids produced in on the sensitivities of subgroups as it consumption patterns. In the 1994 plants as part of a plant-pesticide are pertains to the nucleic acids produced proposal (59 FR 60542), EPA considered subject to the same processes of in plants as part of a plant-pesticide in available information on the dietary degradation and decay that all organic the proposal (59 FR 60542). The consumption pattern of infants and matter undergoes. This turnover of Agency’s evaluation is summarized in children as it pertains to nucleic acids biochemical materials in nature through Unit IV.A. of this supplemental notice. produced in plants as part of a plant- Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27147 pesticide and has summarized the on EPA’s conclusion that there are no these substances. No evidence, in the evaluation in Unit IV.A. of this substances outside of the food supply many years of human experience with supplemental notice. The range of foods with a common mechanism of toxicity the growing and consumption of food consumed by infants and children is in to the residues of nucleic acids from plants containing residues of general more limited than the range of produced in plants as part of a plant- nucleic acids produced in plants as part foods consumed by adults. Most pesticide. of a plant-pesticide, indicates that newborns rely on milk products for d. Margin of safety. In determining adverse effects due to aggregate nutrition, although some infants are fed whether the residues of nucleic acids exposure through the dietary, non-food soy-based products. Infants begin as produced in plants as part of a plant- oral, dermal and inhalation routes early as 4-months of age to consume pesticide are safe, FFDCA section occur. specific types of solid foods. Subsequent 408(b)(2)(C) directs EPA to apply a The conclusion that residues of to 4 months of age, apart from tenfold margin of safety for the residues nucleic acids produced in plants as part processing to facilitate swallowing, the and other sources of exposure to infants of a plant-pesticide should be exempt diets of infants are based on foods and children to account for potential from tolerance requirements under the consumed by the general adult pre- and post-natal toxicity and FFDCA section 408 safety standard also population albeit in different completeness of data on threshold lends support to EPA’s proposed FIFRA proportions. As infants and children effects with respect to exposure and exemptions (59 FR 60519) with respect mature, more and more of the foods toxicity to infants and children, unless to human dietary risks. These normally consumed by adults become a different margin will be safe. In exemptions are: (1) Plant-pesticides that part of their diets and the relative proposing the exemption, EPA based its are derived from a plant that is sexually proportions of the different types of assessment of exposure and toxicity compatible with the recipient plant, (2) food consumed changes to more closely upon reliable information (Ref. 1) plant-pesticides that act primarily by resemble an adult diet. All foods including the long history of safe human affecting the plant, and (3) plant- consumed by infants and children consumption of food containing pesticides that are coat proteins from residues of nucleic acids produced in contain nucleic acids. plant viruses (59 FR at 60535). In the b. Special susceptibility. In the 1994 plants as part of a plant-pesticide and FIFRA proposal, EPA utilized two proposal (59 FR 60542), EPA considered other substances in food, and the unique criteria to determine whether plant- available information on the potential nature of plant-pesticides. EPA did not pesticides should be exempt; (1) for susceptibility of infants and rely on animal data. EPA relied on whether they posed a low probability of children, including pre- and post-natal observations concerning whole food risk, and (2) whether they caused toxicity, as these factors pertain to the consumption by humans and did not unreasonable adverse effects on the nucleic acids produced in plants as part rely on single entity testing, wherein environment. Based upon the of a plant-pesticide. There is no substances are isolated from a plant determination that residues of the three scientific evidence that nucleic acids as source, and fed to animals at high a component of food would have a concentrations (Ref. 1). EPA relied on categories of pesticidal substances different effect on children than they the vast base of the human experience subject to the proposed exemptions (59 would on the adult population. EPA with actual food consumption rather FR 60535) and the nucleic acid summarizes its analysis of the effect of than limited testing situations. EPA component of a plant-pesticide (59 FR consumption in food of nucleic acids on thus, did not utilize animal or other 60542) meet the FFDCA section 408 human health in Unit IV.A. of this studies that would yield data that could safety test, EPA concludes plant- supplemental notice. be subjected to an additional margin of pesticides in the three proposed c. Cumulative effects of residues with safety. (See Units IV.A. and IV.B.3. of categories of exemption would pose other substances with a common this supplemental notice). As a result, only a low probability of human dietary mechanism of toxicity. In the 1994 the FQPA amendments to FFDCA do risk and also would not pose an proposal (59 FR 60542), EPA examined not affect EPA’s analysis. unreasonable adverse effect with respect the available information on the to such risks. C. Safety Determinations in Light of cumulative effect of residues of nucleic D. Other Considerations. acids produced in plants as part of a FFDCA Amendment plant-pesticide as well as other Based on the information discussed in When the Agency proposed to substances in food that may have a the 1994 proposals (59 FR 60496 establish an exemption from the common mechanism of toxicity. The through 60547), the discussion in Unit requirement of a tolerance for nucleic Agency’s consideration in the proposal IV.A. and the analysis in Unit IV.B. of acids produced in plants as part of a of the effects of the residues of nucleic this supplemental notice, EPA plant-pesticide (59 FR 60542), EPA did acids produced in plants as part of a concludes that there is a reasonable not propose any numerical limitation on plant-pesticide on the general certainty that no harm will result to the the amount of nucleic acids that could population also included consideration U.S. population in general, and U.S. be present in food containing these of effects for infants and children. See infants and children, from aggregate residues. EPA consulted in 1994 with Unit IV.B.5. of this supplemental notice exposure to residues of nucleic acids the Department of Health and Human for a discussion of cumulative effects of produced in plants as part of a plant- Services (DHHS) in developing the nucleic acids and other substances that pesticide, including all anticipated proposed exemption and this have a common mechanism of toxicity. dietary exposures and all other supplemental notice and will consult Because EPA already considered the exposures for which there is reliable with the Secretary of HHS prior to safety of food containing residues of information. Under the proposed issuing the final rule. Because the 1994 nucleic acids produced in plants as part exemption from the requirement for a proposal was an exemption from the of a plant-pesticide and other tolerance (59 FR 60542), EPA would requirement of a tolerance, the Agency constituents of food when it issued the exempt residues of nucleic acids has concluded that an analytical method proposal (59 FR 60542), the Agency is produced in plants as part of a plant- for detecting and measuring the levels of not requesting additional comment on pesticide. Extensive use and experience the residues of nucleic acids in or on that topic. Comments are requested only show the safety of foods containing food is not required. 27148 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules

V. Comments (2) EPA’s conclusion that there are no WordPerfect 5.1 file format or ASCII file additional substances outside the food format. All comments and data in A. Confidential Business Information supply that are related, via a common electronic form must be identified by Information submitted as a comment mechanism of toxicity, to residues of the docket number ‘‘OPP–300371A.’’ concerning this supplemental notice nucleic acids produced in plants as part Electronic comments on this may be claimed confidential by marking of a plant-pesticide for which EPA must supplemental notice may be filed online any part or all of that information as consider exposure in aggregate with at many Federal Depository Libraries. ‘‘Confidential Business Information’’ nucleic acids. VII. References (CBI). CBI should not be submitted Commenters who possess information through e-mail. Information marked as on nucleic acids causing estrogenic (1) International Food Biotechnology CBI will not be disclosed except in effects are requested to send such Council, 1990. Biotechnologies and accordance with procedures set forth in information to EPA. food; Assuring the safety of foods 40 CFR part 2. A copy of the comment In this supplemental notice, EPA produced by genetic modification. In: that does not contain CBI must be describes in greater detail the rationale Regulatory Toxicology and submitted for inclusion in the public supporting the statement made in the Pharmacology. Vol. 12. Academic Press, record. Information not marked 1994 Federal Register (59 FR at 60513) New York. confidential may be disclosed publicly that ‘‘plant-pesticides are likely to by EPA without prior notice. present a limited exposure of pesticidal VIII. Regulatory Assessment Requirements B. 30-Day Comment Period substances to humans. In most cases, the predominant, if not the only route This supplemental notice merely EPA is allowing a 30–day comment of exposure will be dietary. Significant period because it has determined that seeks additional comments on the respiratory and dermal exposures will proposed rules with regard to the such a period will provide the public be unlikely.’’ No comments were with an adequate opportunity to potential impact that the new statutory received on this statement during the amendments imposed by the August 3, respond to the additional issues raised official comment period. Commenters in this supplemental notice. FFDCA and 1996 Food Quality Protection Act may comment on this more detailed (FQPA) might have on the provisions as FIFRA do not specify a comment period rationale. for this type of notice. EPA has decided proposed. As such, this notice does not In this supplemental notice, EPA also contain any new proposed requirements that a 30–day comment period is describes in greater detail how the reasonable because this supplemental that would require additional rationale presented in the 1994 Federal consideration by the Office of notice raises very few new issues that Register (59 FR at 60538) concerning the were not already available for public Management and Budget (OMB) under safety for human consumption of food Executive Order 12866, entitled comment. As discussed in Unit IV. of containing nucleic acids produced in this supplemental notice, EPA Regulatory Planning and Review (58 FR plants as part of a plant-pesticide 51735, October 4, 1993) or the effectively considered most of the applies to infants and children. No factors required by the FQPA Paperwork Reduction Act (PRA), 44 comments were received on this U.S.C. 3501 et seq. It does not require amendments of FFDCA and FIFRA statement during the official comment relevant to the proposed exemptions any other action under Executive Order period. Commenters may comment on 12875, entitled Enhancing the when it issued the proposed package of this more detailed rationale specifically notices describing EPA’s approach in Intergovernmental Partnership (58 FR addressing infants and children as part 58093, October 28, 1993), Executive 1994 (59 FR 60496, 60519, 60535, 60542 of the larger human population. and 60545). At that time, the public had Order 12898, entitled Federal Actions to an opportunity to review both the VI. Public Docket Address Environmental Justice in Minority Populations and Low-Income Agency’s rationale for the proposals and The official record for this the underlying support documents Populations (59 FR 7629, February 16, rulemaking, as well as the public 1994), or the Regulatory Flexibility Act during a 90–day public comment version, has been established for this period. Only a limited number of new (RFA) (5 U.S.C. 601 et seq.). The rulemaking under docket control Agency’s activities related to these issues have been raised by the FQPA number number ‘‘OPP–300371A’’ amendments to FFDCA and FIFRA and regulatory assessment requirements are (including comments and data discussed in the proposed rules. the Agency continues to rely upon the submitted electronically as described EPA did not consider Title II of the information already in the docket for the below). A public version of this record, Unfunded Mandates Reform Act of 1995 1994 proposals and thus 30 days should including printed, paper versions of (UMRA) (Pub. L. 104-4) at the proposal provide adequate time for public electronic comments, which does not stage because the proposed rules were comment. In addition, EPA believes that include any information claimed as CBI, issued prior to its enactment. Although it is in the interest of the public to is available for inspection from 8:30 this supplemental notice is not subject publish the final exemption from the a.m. to 4 p.m., Monday through Friday, to UMRA because it neither proposes or requirement of a tolerance in a timely excluding legal holidays. The official finalizes any regulatory requirements, manner. rulemaking record is located at the the applicability of the UMRA address in ‘‘ADDRESSES’’ at the C. Request for Comments requirements will be addressed in the beginning of this document. final rules. Interested persons are invited to Electronic comments can be sent submit written comments on the new directly to EPA at: List of Subjects in 40 CFR Part 180 issues raised in this supplemental notice specifically on: [email protected] Environmental protection, (1) EPA’s conclusion that there are no Electronic comments must be Administrative practice and procedure, substances outside of the food supply submitted as an ASCII file avoiding the Agricultural commodities, Pesticides that may have a cumulative toxic effect use of special characters and any form and pests, Plants, Plant-pesticides, with residues of nucleic acids produced of encryption. Comment and data will Reporting and recordkeeping in plants as part of a plant-pesticide. also be accepted on disks in requirements. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27149

Dated: May 7, 1997. DATES: Comments, identified by the pesticides because of their intended role Lynn R. Goldman, docket number ‘‘OPP–300367A,’’ must in plant resistance to viral infection. be received on or before June 16, 1997. One of the five notices (59 FR 60545) Assistant Administrator for Prevention, proposed to exempt viral coat proteins Pesticides and Toxic Substances. ADDRESSES: By mail, submit written produced in plants as part of a plant- comments to: Public Information and [FR Doc. 97–12786 Filed 5–15–97; 8:45 am] pesticide, or segments of coat proteins, Records Integrity Branch, Information BILLING CODE 6560±50±F from the FFDCA (21 U.S.C. 346a) Resources and Services Division requirement of a tolerance based upon (7506C), Office of Pesticide Programs, an evaluation of the potential for new Environmental Protection Agency, 401 ENVIRONMENTAL PROTECTION dietary exposures to the substances AGENCY M St., SW., Washington, DC 20460. In when they are produced in plants, or in person deliver comments to: Rm. 1132, plant parts, used as food or feed. EPA 40 CFR Part 180 Crystal Mall #2, 1921 Jefferson Davis stated in the proposed exemption that a Highway, Arlington, VA. tolerance is not necessary to protect the [OPP±300367A; FRL±5716±6] Comments and data may also be public health for these pesticidal submitted electronically by following substances because no new dietary RIN 2070-AC02 the instructions under Unit VI. of this exposures are likely to occur for viral document. No Confidential Business coat proteins produced in plants as part Plant-Pesticides; Viral Coat Proteins; Information (CBI) should be submitted of a plant-pesticide. For pesticidal Supplemental Notice of Proposed through e-mail. substances in this category, many years Rulemaking FOR FURTHER INFORMATION CONTACT: of human experience with consumption Elizabeth Milewski, Office of Science, of food containing plant viruses suggest AGENCY: Environmental Protection Coordination and Policy, Office of that these pesticidal substances present Agency (EPA). Prevention, Pesticides and Toxic negligible risk. Specifically, EPA ACTION: Supplemental notice of Substances (7101), Environmental proposed that ‘‘residues of coat proteins proposed rulemaking. Protection Agency, 401 M St., SW., from plant viruses, or segments of the Washington, DC 20460, Telephone: coat proteins, produced in living plants SUMMARY: This document announces the (202) 260-6900, e-mail: as plant-pesticides are exempt from the availability of information for additional [email protected]. requirement of a tolerance’’ (59 FR at public comment regarding the proposed 60547). exemption from the requirement of a SUPPLEMENTARY INFORMATION: This supplemental notice addresses tolerance under the Federal Food, Drug, I. Introduction the coat protein portion of the plant- and Cosmetic Act (FFDCA) for residues pesticide produced in food plants. A of coat proteins from plant viruses when EPA issued in the November 23, 1994 companion supplemental notice issued these coat proteins are produced and Federal Register a package of five elsewhere in today’s Federal Register used as plant-pesticides in plants or separate Federal Register proposals (59 addresses the proposed exemption for plant parts used as raw agricultural FR 60496, 60519, 60535, 60542 and the nucleic acid component of plant- commodities. Comments on this 60545) (FRL–4755–2, FRL–4755–3, pesticides with regard to the FQPA document may also affect EPA’s final FRL–4758–8, FRL–4755–5, and FRL– amendments to FFDCA. Because FQPA determination on a proposed exemption 4755–4) which together described EPA’s modified FIFRA (7 U.S.C. 136 et seq.) by under the Federal Insecticide, approach to substances produced in incorporating the FFDCA safety Fungicide, and Rodenticide Act (FIFRA) plants that enable the plants to resist standard into the FIFRA test for for this same category of plant- pests or disease. EPA’s package of determining whether a pesticide poses pesticides. In 1994, EPA proposed to proposals indicated that these an unreasonable adverse effect, exempt from the requirement of a substances are pesticides under section comments on this supplemental notice tolerance viral coat proteins produced 2 of FIFRA (7 U.S.C. 136(u)) if they are may also affect EPA’s final in plants as part of a plant-pesticide ‘‘intended for preventing, destroying, determination on a proposed exemption because a tolerance would not be repelling, or mitigating any pest’’ or if under FIFRA (59 FR at 60535) for plant- necessary to protect the public health. they are ‘‘ . . . intended for use as a plant pesticides that are coat proteins from Since publication of the proposal, regulator, defoliant, or desiccant’’ plant viruses. Congress enacted the Food Quality regardless of whether the pesticidal EPA is publishing this supplemental Protection Act (FQPA) which amended capabilities evolved in the plants or notice to ensure that the public has had FFDCA and FIFRA. EPA is issuing this were introduced by breeding or through adequate opportunity to comment on document today to provide the public the techniques of modern certain new considerations raised by the with an opportunity to comment on biotechnology. These substances, and FQPA amendments to FFDCA as these EPA’s analysis of how certain FQPA the genetic material necessary to considerations relate to the proposed amendments to FFDCA and FIFRA produce them, were designated ‘‘plant- exemption from a tolerance for residues apply to the proposed exemption from pesticides’’ by EPA in the November 23, of viral coat proteins produced in plants the requirement of a tolerance for viral 1994 Federal Register documents. The as part of a plant-pesticide. In coat proteins produced in plants as part notices defined a ‘‘plant-pesticide’’ as ‘‘a evaluating a pesticide chemical residue of a plant-pesticide. EPA believes that it pesticidal substance that is produced in for exemption from FFDCA tolerance considered most of the substantive a living plant and the genetic material requirements, EPA must now explicitly issues associated with the FQPA necessary for the production of the address certain factors, and make a amendments when it issued the pesticidal substance where the determination that there is a reasonable proposal in 1994. EPA is thus, in this pesticidal substance is intended for use certainty that aggregate exposure to the document, specifically seeking in the living plant’’ (59 FR at 60534). residue will cause no harm to the comment only on its evaluation of the Viral coat proteins produced in plants public. The factors to be considered are requirements imposed by FQPA that the for viral coat protein mediated viral iterated in Unit II. of this supplemental Agency did not address in that proposal. resistance are considered plant- notice. EPA’s evaluation of these factors 27150 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules relative to the proposed exemption (59 FQPA amends both FFDCA and 408(c)(3)(B) prohibits an exemption FR 60545) is contained in Unit IV. of FIFRA. FQPA, which took effect on unless there is either a practical method this supplemental notice. Consistent August 3, 1996, among other things, for detecting and measuring levels of with FFDCA section 408(c)(2)(B), EPA amends FIFRA such that a registration pesticide chemical residue in or on food has reviewed the available scientific cannot be issued for a pesticide to be or there is no need for such a method data and other relevant information in used on or in food unless the residue of (21 U.S.C. 346a(c)(3)(B)). support of this action. In today’s the pesticide in food qualifies for a Specifically, EPA must consider the supplemental notice, EPA requests tolerance or exemption from the following in deciding whether to grant comment only on the new conclusions requirement for a tolerance. FQPA an exemption: identified in Unit V.C. of this modified FIFRA section 2(bb) by 1. The validity, completeness and supplemental notice. incorporating the FFDCA section 408 reliability of the available data from In light of FQPA, EPA is engaged in safety standard into the test for studies of the pesticide chemical and a process, including consultation with determining whether a pesticide poses pesticide chemical residue. registrants, states, and other interested an unreasonable adverse effect (7 U.S.C. 2. Nature of any toxic effect shown to stakeholders, to make decisions on the 136(bb)). FIFRA section 2(bb) defines be caused by the pesticide chemical or new policies and procedures that will the term ‘‘unreasonable adverse effects residues in studies. be appropriate as a result of enactment on the environment’’ to mean (1) any 3. Available information concerning of FQPA. In establishing this exemption unreasonable risk to man or the the relationship of the results of such from the requirement of a tolerance for environment, taking into account the studies to human risk. residues of viral coat proteins produced economic, social, and environmental 4. Available information concerning in plants as part of a plant-pesticide, costs and benefits of the use of any the dietary consumption patterns of EPA does not intend to set precedents pesticide, or (2) a human dietary risk consumers (and major identifiable for the application of section 408 and from residues that result from a use of subgroups of consumers). the new safety standard to other a pesticide in or on any food 5. Available information concerning tolerances and exemptions. This inconsistent with the standard under the cumulative effects of such residues exemption from the requirement of a section 408 of the FFDCA. Thus, a and other substances that have a tolerance will not restrict EPA’s options pesticide used in or on food that does common mechanism of toxicity. 6. Available information concerning with regard to general procedures and not meet the FFDCA section 408 safety the aggregate exposure levels of policies for implementation of the standard also would pose an consumers to the pesticide chemical amended FFDCA section 408. unreasonable adverse effect under residue and to other related substances, FIFRA and would not qualify for an II. Statutory Authority including dietary exposure and non- exemption from the requirements of Under FFDCA, EPA regulates occupational exposures. FIFRA under FIFRA section 25(b)(2). 7. Available information concerning pesticide chemical residues by FQPA amends FFDCA section the variability of the sensitivities of establishing tolerances limiting the 408(c)(2)(A)(i) to allow EPA to establish major identifiable subgroups of amounts of residues that may be present an exemption from the requirement of a in food, or by establishing exemptions consumers. tolerance for a ‘‘pesticide chemical 8. Such information as the from the requirement of a tolerance for residue’’ only if EPA determines that the such residues. Pesticide chemical Administrator may require on whether exemption is ‘‘safe’’ (21 U.S.C. the pesticide chemical may have an residues subject to regulation under 346a(c)(2)(A)(i)). Section 408(c)(2)(A)(ii) FFDCA are defined by reference to the effect in humans that is similar to an defines ‘‘safe’’ to mean that ‘‘there is a effect produced by a naturally-occurring definition of pesticide under FIFRA. reasonable certainty that no harm will FFDCA section 201(q)(1) defines a estrogen or other endocrine effects. result from aggregate exposure to the 9. Safety factors which in the opinion ‘‘pesticide chemical residue’’ to mean pesticide chemical residue, including of experts qualified by scientific training the residue in or on food of a pesticide all anticipated dietary exposures and all and experience to evaluate the safety of chemical or other added substance other exposures for which there is food additives are generally recognized resulting primarily from the metabolism reliable information’’ (21 U.S.C. as appropriate for the use of animal or degradation of a pesticide chemical 346a(c)(2)(A)(ii)). This includes experimentation data (21 U.S.C. (21 U.S.C. 321 (q)(2)). A ‘‘pesticide exposure through drinking water, but 346a(b)(2)(D)). chemical’’ means ‘‘any substance that is does not include occupational exposure. Additionally, with respect to a pesticide within the meaning of the In establishing an exemption from the exposure of infants and children, Federal Insecticide, Fungicide, and requirement of a tolerance, FFDCA consistent with section 408(b)(2)(C), Rodenticide Act, including all active section 408(c), like the statute prior to EPA must assess the risk of the pesticide and inert ingredients of such pesticide’’ FQPA, does not require EPA to consider based on available information (21 U.S.C. 321(q)(1)). benefits that might be associated with concerning: FIFRA authorizes EPA to regulate the use of the pesticide chemical. 1. Consumption patterns that are sale and distribution of pesticides in the FFDCA section 408 requires EPA to likely to result in disproportionately United States and to exempt a pesticide give special consideration to exposure high consumption of food with from the requirements of FIFRA if it is of infants and children to the pesticide pesticide residues. not of a character requiring regulation (7 chemical residue in establishing an 2. Special susceptibility of infants and U.S.C. 136a(a) and 136w(b)). FIFRA exemption and to ‘‘ensure that there is children to such residues. section 2(u) defines ‘‘pesticide’’ as: (1) a reasonable certainty that no harm will 3. Cumulative effects of residues with ‘‘any substance or mixture of substances result to infants and children from other substances that have a common intended for preventing, destroying, aggregate exposure to the pesticide mechanism of toxicity (21 U.S.C. repelling, or mitigating any pest, (2) any chemical residue’’ (21 U.S.C. 346a(b)(2)(C) and (c)(2)(B)). substance or mixture of substances 346a(b)(2)(C)(ii)(I)) and (c)(2)(B). Section intended for use as a plant regulator, 408(b)(2)(D) specifies other, general III. Summary of Proposed Rule defoliant, or desiccant, and (3) any factors EPA is to consider in In the November 23, 1994 Federal nitrogen stabilizer’’ (7 U.S.C. 136(u)). establishing an exemption. Section Register, EPA proposed to exempt from Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27151 the requirement of a tolerance coat present a dietary risk. In answer to the B. Risk Assessment in Light of proteins from plant viruses, or segments question, the subpanel stated that Amendment to FFDCA of such proteins when these proteins, or ‘‘[s]ince viruses are ubiquitous in the segments of these proteins, are agricultural environment at levels After EPA issued its proposed exemption from the requirement of a produced in plants for the purpose of higher than will be present in transgenic tolerance for viral coat proteins protecting plants against viral disease. plants, and there has been a long history produced in plants as part of a plant- Coat proteins are those substances that of ‘contamination’ of the food supply by viruses produce to encapsulate and pesticide (59 FR 60545), Congress virus coat protein, there is [a] scientific enacted FQPA and amended certain protect their genetic material. When the rationale for exempting transgenic genetic material encoding the coat FFDCA provisions governing pesticide plants expressing virus coat protein chemical residues and FIFRA provisions protein is introduced into a plant’s from the requirement of a tolerance.’’ genome, the plant is able to resist governing pesticides (See Unit II. of this infections by the virus donating the As described in the proposed supplemental notice). Congress revised genetic material for the coat protein (as regulation (59 FR 60545), entire the specific wording of the section 408 well as infections by virus strains infectious particles of the plant viruses, standard for exemptions and provided closely related to the donor virus). This including the coat protein component, more specific guidance regarding some resistance is termed viral coat protein have been and are being consumed by of the factors that EPA should consider mediated resistance or vcp-mediated humans with no observed adverse in establishing such exemptions (see resistance. effects. Virus-infected food plants have Unit II. of this supplemental notice). always been a part of the human and When EPA proposed the exemption for IV. Risk Assessment and Safety residues of viral coat proteins produced Determinations domestic animal food supply (Refs. 1, 2, 3, and 4). For example, at the beginning in plants as part of a plant-pesticide, or A. Risk Assessment in Proposal of this century virtually every segments of such proteins, it considered most of the safety factors spelled out in commercial cultivar of potatoes grown EPA’s rationale for its 1994 proposal FQPA even though the Agency may not in the United States and Europe was for an exemption from the requirement have explicitly discussed all those of a tolerance for viral coat proteins was infected with either one or some factors using the terminology specified based on the following points: (1) Virus- complex of potato viruses (Ref. 1). in the FQPA amendments. This infected plants have always been a part All plants have viruses that can infect supplemental notice describes how the of the human and domestic animal food them. While some viruses may be Agency took account of most of the supply since most crops are frequently limited to certain tissues (e.g., the FQPA factors in issuing its 1994 infected with plant viruses and food vascular system) or organs (e.g., roots), proposal to exempt viral coat proteins, from these crops have been and are most plant viruses are found throughout or segments of such proteins, produced being consumed without detectable the various organs and tissues of plants. in plants as part of a plant-pesticide and adverse human health effects. (2) Plant Viruses, including the coat protein indicates which factors were considered viruses have never been shown to be in that proposal. The information the infectious to humans, including component, are found in the fruit, leaves, and stems of most plants. The Agency relied on in considering these children and infants, or mammals. Plant factors is part of the public record viruses are not able to replicate in long history of inadvertent mammalian consumption of the entire plant virus which was available to the public when mammals or other vertebrates, limiting EPA issued the proposed exemption the possibility of human infection. In particle in foods with no observed ill effects presents a strong argument to from the requirement of a food addition, this exemption applies only to tolerance. This supplemental notice also support the human and domestic animal the portion of the viral genome coding identifies the factors that were not safety of the entire virus in foods. for the whole coat protein or a segment considered in the proposal. Because Concentrations of the virus particles in of the coat protein which will be FQPA amended FIFRA by incorporating expressed in the plant. The coat protein infected plants vary widely according to the section 408 safety standard, or a segment of the coat protein by itself the host plant, length of infection, and commenters should be aware that is incapable of forming infectious the reproductive life cycle of the virus comments on this supplemental notice particles. Since whole, intact plant itself. In general, EPA anticipates that may also affect EPA’s final viruses are not known to cause the amounts of viral coat protein determination on the proposed deleterious human health effects, it is consumed in the diet due to the exemption (59 FR 60519) under FIFRA reasonable to assume that a subunit of production of viral coat proteins in vcp- for viral coat proteins produced in these viruses likewise will not cause mediated resistance will be similar to plants as plant-pesticides. adverse human health effects when the amounts of viral coat proteins 1. Available data. EPA considered in consumed at rates currently found in currently consumed. the food supply. 1994, the validity, completeness and In developing its regulatory approach Plant pathogenic viruses have never reliability of the available data with for plant-pesticides, EPA requested the been shown capable of infecting or regard to coat proteins from plant advice of a subpanel, composed of replicating in vertebrates (Refs. 1, 2, and viruses in the proposals (59 FR 60519 experts in the relevant scientific 5). Intact, infectious, whole plant and 60545) and has summarized the disciplines, of the FIFRA Scientific viruses, therefore, are not infectious to evaluation in Unit IV.A. of this Advisory Panel (SAP). On December 18, humans, including children and infants. supplemental notice. 1992, the SAP subpanel was convened Given that the complete virus is not 2. Nature of toxic effect. EPA in 1994 to review a draft policy statement for infectious to vertebrates, it is reasonable considered the nature of the toxic effects plant-pesticides and respond to a series to assume that a noninfectious caused by viral coat proteins produced of scientific questions posed by the subcomponent (i.e., a coat protein or a in plants as part of a plant-pesticide in Agency. One question that the Agency segment of a coat protein) of the virus the proposals (59 FR 60519 and 60545) asked the SAP subpanel was whether would not be hazardous to humans or and has summarized its evaluation in coat proteins from plant viruses might animals. Unit IV.A. of this supplemental notice. 27152 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules

3. Relationship of studies to humans. in plants as part of a plant-pesticide. route, EPA in this supplemental notice EPA in 1994 considered the available Experience with residues of viral coat sets forth in greater detail its information concerning the relationship proteins in the current food supply considerations concerning other to humans of toxic effects of viral coat gives no indication of human or animal exposure routes. With regard to the proteins produced in plants as part of a toxicity. If information becomes dermal route of exposure, viral coat plant-pesticide when it issued the available that indicates this finding is proteins produced in plants as part of a proposals (59 FR 60519 and 60545) and not appropriate, EPA will consider the plant-pesticide may in some cases be has summarized that evaluation in Unit validity of the new information and act present in sap or other exudates from IV.A. of this supplemental notice. EPA to amend this tolerance exemption as the plant or the food and thus may based its evaluation on the history of needed. present some limited opportunity for human consumption of food derived EPA is not aware of any substances dermal exposure to persons coming from crop plants, and from products outside of the food supply that may physically into contact with the plant or such as meat and milk from animals that have a common mechanism of toxicity raw agricultural food from the plant. with residues of viral coat proteins consume forage and other crops (e.g., Individuals preparing meals are those produced in plants as part of a plant- corn and other grains) that contain most likely to experience dermal contact pesticide since viral coat proteins are residues of pesticidal substances that with the substances on a non- are the subject of the proposed not toxic to humans or animals. occupational basis. However, on a per exemption. Because knowledge of EPA considered the safety of foods person basis, the potential amounts human consumption of food from virus containing residues of viral coat involved in these exposures are infected crop plants (as well as meat proteins when it issued the proposal and milk products derived from animals and is not requesting additional negligible in comparison to potential eating such plants) was available and comment on that topic. Comments are exposure through the dietary route. adequately addressed the issues of only requested on EPA’s conclusion that Moreover, substances that occur hazard and exposure, the Agency did there are no substances outside of the naturally in food, including viral coat not use, for the proposed exemption (59 food supply that may have a cumulative proteins produced in plants as part of a FR 60545), data generated in the toxic effect with residues of viral coat plant-pesticide, are unlikely to cross the laboratory through animal testing. proteins produced in plants as part of a barrier provided by the skin. 4. Dietary consumption patterns. EPA plant-pesticide. With regard to exposure through considered in the 1994 proposal the 6. Aggregate exposures including non- inhalation, viral coat proteins produced available information on the varying occupational exposures. EPA has in plants as part of a plant-pesticide dietary consumption patterns of major considered the available information on may in some cases be present in pollen identifiable consumer subgroups as it the aggregate exposure level of and some individuals (those near pertains to consumption of food from consumers to viral coat proteins enough to farms, nurseries or other virus infected plants. The Agency’s produced in plants as part of a plant- plant-growing areas to be exposed to evaluation is summarized in Unit IV.A. pesticide in the 1994 FFDCA and FIFRA wind-blown pollen) may be exposed, of this supplemental notice. proposals (59 FR 60519 and 60545). through inhalation, to the pollen. On a This included a consideration of 5. Available information concerning per person basis, the potential amounts exposures from dietary sources (59 FR cumulative effects of the pesticide of pollen involved in these exposures 60545) as well as from other non- chemical residue and other substances are negligible in comparison to potential occupational sources (59 FR 60519). As that have a common mechanism of exposure through the dietary route. It is toxicity. EPA has examined the indicated in EPA’s policy statement, unlikely that exposure to the pollen is available information on the cumulative ‘‘plant-pesticides are likely to present a equivalent to exposure to viral coat effect of consuming virus infected limited exposure of the pesticidal proteins produced in plants as part of a plants and other substances in plants substance to humans. In most cases, the plant-pesticide. When present in pollen, that may have a common mechanism of predominant, if not the only, exposure human toxicity. EPA summarizes this route will be dietary. Significant the viral coat proteins produced in information and its analysis in Unit respiratory and dermal exposures will plants as part of plant-pesticides will IV.A. of this supplemental notice. be unlikely’’ (59 FR at 60513). As likely be integrated into the tissue of the Viral coat proteins are nontoxic explained in the FFDCA and FIFRA pollen grain and not likely to be bound proteins widespread in food. They have proposals and EPA’s policy statement to the surface of the pollen grain. Pollen not been associated with toxic or (59 FR 60496) and associated dockets, grains and the substances that occur pathogenic effects to animals or plant-pesticides present negligible naturally in pollen are unlikely to cross humans. Because viral coat proteins in exposure of pesticidal substances to the barrier provided by the mucous foods have no known human toxicity, humans outside of the dietary route membrane of the respiratory tract and no cumulative effects can be identified because the substances are in the plant thus are not additive to dietary for viral coat proteins produced in tissue and thus are found either within exposure. Some viruses are transmitted plants as part of a plant-pesticide. FQPA the plant or in close proximity to the by wind-borne vectors, i.e., pollen or also directs the Agency to examine plant. EPA considered dietary exposure fungal spores and individuals near whether there are other substances that to residues of viral coat proteins enough to farms, nurseries or other have a common mechanism of toxicity produced in plants as part of a plant- plant-growing areas to be exposed to with residues of viral coat proteins pesticide in the proposed FFDCA these wind-blown vectors may be produced in plants as part of a plant- exemption (59 FR 60545) and exposed, through inhalation, to the pesticide. Based on available summarized its evaluation in Unit IV.A. whole virus particle. Since no evidence information which indicates that viral of this supplemental notice. suggests that exposure to whole plant coat proteins in food have no human Despite EPA’s belief that, because of viruses borne by wind-blown pollen or toxicity, EPA is not aware of any other the nature of viral coat proteins fungal spores results in adverse effects, substances that might have a common produced in plants as part of a plant- it is unlikely that exposure to pollen mechanism of human toxicity with pesticide, there is little likelihood of that may contain viral coat proteins residues of viral coat proteins produced exposure other than through the dietary produced in plants as part of a plant- Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27153 pesticide would result in adverse with such substances through the produced in plants as part of a plant- effects. dietary, non-food oral, dermal and pesticide (59 FR 60545). As discussed in EPA also evaluated potential non- inhalation routes occurs. Unit IV.A. of this supplemental notice, occupational exposures in drinking EPA considered exposure to residues EPA relied on the long history of safe water. As noted in the preceding of viral coat proteins produced in plants human consumption of food containing paragraphs, most substances in plants or as part of a plant-pesticide when it plant viruses and consumption of food parts of plants, including viral coat issued the proposal and is not derived from animals that consume proteins produced in plants as part of a requesting additional comment on that forage and other crops (e.g., corn and plant-pesticide, are found only inside topic. Comments are only requested on other grains) that are also likely to the plant itself. Viral coat proteins EPA’s conclusion that there are no contain plant viruses. EPA continues to produced in plants as part of a plant- substances outside of the food supply believe that long-term evidence of pesticide are an integral part of the that are related, via a common human consumption, not animal living tissue of the plant. When the mechanism of action, to residues of viral experimentation data, is the appropriate plant dies or a part is removed from the coat proteins produced in plants as part information base for the proposed plant, microorganisms colonizing the of a plant-pesticide for which EPA must exemption (59 FR 60545). Because EPA tissue immediately begin to digest it, consider exposure in aggregate with did not rely on animal experimentation using the components of the tissue viral coat proteins. data, the Agency did not consider which (including viral coat proteins produced 7. Sensitivities of subgroups. In 1994, safety factors would be appropriate to in plants as part of a plant-pesticide) as EPA considered available information use in assessing risk to humans based building blocks for making their own on the sensitivities of subgroups as it on data generated through experiments tissues or for fueling their own pertains to viral coat proteins produced on animals. metabolisms. Viral coat proteins, or in plants as part of a plant-pesticide in 10. Infants and children.—a. Dietary segments of these proteins, produced in the proposal (59 FR 60545). The consumption patterns. In the 1994 plants as part of a plant-pesticide are Agency’s evaluation is summarized in proposal (59 FR 60545), EPA considered subject to the same processes of Unit IV.A. of this supplemental notice. available information on the dietary degradation and decay that all organic 8. Naturally occurring estrogen or consumption pattern of infants and matter undergoes. This turnover of other endocrine effects. FFDCA now children as it pertains to viral coat biochemical materials in nature through directs EPA, in establishing an proteins in food and has summarized a process of degradation occurs fairly exemption from the requirement of a the evaluation in Unit IV.A. of this rapidly. Therefore, viral coat proteins tolerance, to consider ‘‘such information supplemental notice. The range of foods produced in plants as part of a plant- as the Administrator may require on consumed by infants and children is in pesticide do not persist in the whether the pesticide chemical may general more limited than the range of environment or bioaccumulate. There is have an effect in humans that is similar foods consumed by adults. Most no indication that naturally occurring to an effect of a naturally-occurring newborns rely on milk products for plant biochemical compounds, estrogen or other endocrine effect’’ (21 nutrition, although some infants are fed including viral coat proteins produced U.S.C. 346(a)(q)). Congress allowed EPA soy-based products. Infants begin as in plants as part of plant-pesticides, are 2 years to establish a screening program early as 4-months of age to consume particularly resistant to this to determine whether certain pesticide specific types of solid foods containing degradation. Because of the rapid chemicals may have estrogenic effects residues of pesticidal substances that turnover of these substances, even if and an additional year to implement the are the subject of the proposed they reach surface waters, they are program (21 U.S.C. 408(p)). As part of exemption. Subsequent to 4 months of unlikely to present anything other than the screening and implementation age, apart from processing to facilitate a very negligible exposure in drinking process, EPA is determining what swallowing, the diets of infants are water drawn from either surface or information might be required and how based on foods consumed by the general ground water sources. Therefore, the it will address estrogenic effects from adult population albeit in different potential for non-dietary exposure (i.e., pesticide residues in general. proportions. As infants and children non-food oral, dermal and inhalation) in There is some information on mature, more and more of the foods non-occupational settings is limited and estrogenic effects by exposure to normally consumed by adults become EPA expects such exposure to be pesticides but the data are limited and part of their diets and the relative negligible. do not pertain to viral coat proteins. proportions of the different types of With regard to exposure to ‘‘other Based on available information food consumed changes to more closely related substances,’’ EPA is not aware of concerning the presence of viruses in resemble an adult diet. Since plant any other substances either in food or the food supply with no detectable viruses are ubiquitous in plant foods, outside the food supply that may be adverse human health effects, EPA does EPA concluded that infants and related, via a common mechanism of not expect viral coat proteins expressed children are exposed as part of a normal toxicity, to viral coat proteins produced in plants as part of a plant-pesticide to diet to viral coat proteins. There is no in plants as part of a plant-pesticide cause estrogen or other endocrine evidence that such exposure leads to since viral coat proteins are not toxic to effects. If EPA becomes aware of a any harm. humans or animals. With regard to non- potential for estrogenic or endocrine b. Special susceptibility. In the 1994 occupational exposure through routes effect from exposure to viral coat proposal (59 FR 60545), EPA considered other than dietary exposure, since viral proteins produced in plants as part of a available information on the potential coat proteins are not toxic, EPA is not plant-pesticide, EPA will reexamine this for susceptibility of infants and aware of substances outside the food tolerance exemption in light of that children, including pre- and post-natal supply that may be related via a information. toxicity, as these factors pertain to viral common mechanism of toxicity to the 9. Safety factors. In the 1994 proposal, coat proteins produced in plants as part viral coat proteins produced in plants as EPA did not rely on the available animal of a plant-pesticide. There is no part of a plant-pesticide. No evidence data in reaching its determination that scientific evidence that viral coat indicates that adverse effects due to a tolerance is not necessary to protect proteins as a component of food would aggregate exposure of viral coat proteins the public from viral coat proteins have a different effect on children than 27154 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules they would on the adult population. concentrations of viral coat proteins. D. Other Considerations EPA summarizes its analysis of the EPA, thus, did not utilize animal or When the Agency proposed to effect of consumption in food of viral other studies that would yield data that establish an exemption from the coat proteins on human health in Unit could be subjected to an additional requirement of a tolerance for viral coat IV.A. of this supplemental notice. margin of safety. (See Units IV.A. and proteins produced in plants as part of a c. Cumulative effects of residues with IV.B.3. of this supplemental notice). As plant-pesticide (59 FR 60545), EPA did other substances with a common a result, the FQPA amendments to not propose any numerical limitation on mechanism of toxicity. In the 1994 FFDCA do not affect EPA’s analysis. the amount of viral coat proteins that proposal (59 FR 60545), EPA examined could be present in food containing the available information on the C. Safety Determinations in Light of FFDCA Amendment. these residues. EPA consulted in 1994 cumulative effect of residues of viral with the Department of Health and coat proteins produced in plants as part Based on the information discussed in Human Services (DHHS) in developing of a plant-pesticide as well as other the 1994 proposals (59 FR 60496 the proposed exemption and this substances in food that may have a through 60547), the discussion in Unit supplemental notice, and will consult common mechanism of toxicity. The IV.A. and the analysis in Unit IV.B. of with the Secretary of HHS prior to Agency’s consideration in the proposal this supplemental notice, EPA issuing the final rule. Because the 1994 of the effects of the residues of viral coat concludes that there is a reasonable proposal was an exemption from the proteins produced in plants as part of a certainty that no harm will result to the requirement of a tolerance, the Agency plant-pesticide on the general U.S. population in general, and U.S. has concluded that an analytical method population also included consideration infants and children, from aggregate for detecting and measuring the levels of of effects for infants and children. See exposure to residues of viral coat the residues of viral coat proteins in or Unit IV.B.5. of this supplemental notice proteins produced in plants as part of a on food is not required. for a discussion of cumulative effects of plant-pesticide, including all V. Comments viral coat proteins and other substances anticipated dietary exposures and all that have a common mechanism of other exposures for which there is A. Confidential Business Information toxicity. reliable information. Under the Information submitted as a comment EPA considered the safety of foods proposed exemption from the containing residues of viral coat concerning this supplemental notice requirement for a tolerance (59 FR proteins when it issued the proposal may be claimed confidential by marking 60545), EPA would exempt residues of and it is not requesting additional any part or all of that information as viral coat proteins produced in plants as comment on that topic. Comments are ‘‘Confidential Business Information’’ part of a plant-pesticide. Extensive use only requested on EPA’s conclusion that (CBI). CBI should not be submitted and experience show the safety of foods there are no substances outside of the through e-mail. Information marked as containing these substances. No food supply that may have a cumulative CBI will not be disclosed except in evidence, in the many years of human toxic effect with residues of viral coat accordance with procedures set forth in experience with the growing and proteins produced in plants as part of a 40 CFR part 2. A copy of the comment consumption of food from plants plant-pesticide. that does not contain CBI must be d. Margin of safety. In determining containing viral coat proteins, indicates submitted for inclusion in the public whether the residues of viral coat that adverse effects due to aggregate record. Information not marked proteins produced in plants as part of a exposure through the dietary, non-food confidential may be disclosed publicly plant-pesticide are safe, FFDCA section oral, dermal and inhalation routes by EPA without prior notice. 408(b)(2)(C) directs EPA to apply a occur. B. 30–Day Comment Period tenfold margin of safety for the residues The conclusion that residues of viral and other sources of exposure to infants coat proteins produced in plants as part EPA is allowing a 30 day–comment and children to account for potential of a plant-pesticide should be exempt period because it has determined that pre- and post-natal toxicity and from tolerance requirements under the such a period will provide the public completeness of data on threshold FFDCA section 408 safety standard also with an adequate opportunity to effects with respect to exposure and lends support to one of EPA’s proposed respond to the additional issues raise in toxicity to infants and children, unless FIFRA exemptions (59 FR 60519) with this supplemental notice. FFDCA and a different margin will be safe. In respect to human dietary risks: plant- FIFRA do not specify a comment period proposing the exemption, EPA based its pesticides that are coat proteins from for this type of notice. EPA has decided assessment of exposure and toxicity plant viruses (59 FR at 60535). In the that a 30–day comment period is upon reliable information including the FIFRA proposal, EPA utilized two reasonable because this supplemental long history of safe human consumption criteria to determine whether plant- notice raises very few new issues that of food containing residues of viral coat pesticides should be exempt; (1) were not already available for public proteins produced in plants as part of a whether they posed a low probability of comment. As discussed in Unit IV. of plant-pesticide and other substances in risk, and (2) whether they caused this supplemental notice, EPA food, and the unique nature of plant- unreasonable adverse effects on the effectively considered most of the pesticides. EPA did not rely on animal environment. Based upon the factors required by the FQPA data. EPA relied on observations determination that residues of viral coat amendments of FFDCA and FIFRA concerning whole food consumption by proteins (59 FR 60545) and the nucleic relevant to the proposed exemptions humans and did not rely on single acid component of a plant-pesticide (59 when it issued the proposed package of entity testing, wherein animals are FR 60542) meet the FFDCA section 408 notices describing EPA’s approach in exposed to high concentrations of safety test, EPA concludes viral coat 1994 (59 FR 60496, 60519, 60535, 60542 substances isolated from a plant source. proteins produced in plants as part of a and 60545). At that time, the public had EPA relied on the vast base of the plant-pesticide would pose only a low an opportunity to review both the human experience with actual food probability of human dietary risk and Agency’s rationale for the proposals and consumption rather than limited testing also would not pose an unreasonable the underlying support documents situations involving exposure to high adverse effect with respect to such risks. during a 90–day public comment Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27155 period. Only a limited number of new addressing infants and children as part and J.R. Bonami. CRC Press, Boca Raton, issues have been raised by the FQPA of the larger human population. FL. amendments to FFDCA and FIFRA and VI. Public Docket VIII. Regulatory Assessment the Agency continues to rely upon the Requirements information already in the docket for the The official record for this 1994 proposals and thus 30 days should rulemaking, as well as the public This supplemental notice merely provide adequate time for public version, has been established for this seeks additional comments on the comment. In addition, EPA believes that rulemaking under docket control proposed rules with regard to the it is in the interest of the public to number ‘‘OPP–300367A’’ including potential impact that the new statutory publish the final exemption from the comments and data submitted amendments imposed by the August 3, requirement of a tolerance in a timely electronically as described below). A 1996 Food Quality Protection Act manner. public version of this record, including (FQPA) might have on the provisions as proposed. As such, this notice does not C. Request for Comments printed, paper versions of electronic comments, which does not include any contain any new proposed requirements Interested persons are invited to information claimed as CBI, is available that would require additional submit written comments on the new for inspection from 8:30 a.m. to 4 p.m., consideration by the Office of issues raised in this supplemental Monday through Friday, excluding legal Management and Budget (OMB) under notice specifically on: holidays. The official rulemaking record Executive Order 12866, entitled (1) EPA’s conclusion that there are no is located at the address in Regulatory Planning and Review (58 FR substances outside of the food supply ‘‘ADDRESSES’’ at the beginning of this 51735, October 4, 1993) or the that may have a cumulative toxic effect document. Paperwork Reduction Act (PRA), 44 with residues of viral coat proteins Electronic comments can be sent U.S.C. 3501 et seq. It does not require produced in plants as part of a plant- directly to EPA at: any other action under Executive Order pesticide. 12875, entitled Enhancing the (2) EPA’s conclusion that there are no [email protected] Intergovernmental Partnership (58 FR substances outside of the food supply Electronic comments must be 58093, October 28, 1993), Executive that are related via a common submitted as an ASCII file avoiding the Order 12898, entitled Federal Actions to mechanism of toxicity to residues of use of special characters and any form Address Environmental Justice in viral coat proteins produced in plants as of encryption. Comment and data will Minority Populations and Low-Income part of a plant-pesticide to which also be accepted on disks in Populations (59 FR 7629, February 16, humans might be exposed through non- WordPerfect 5.1 file format or ASCII file 1994), or the Regulatory Flexibility Act occupational routes of exposure. format. All comments and data in Commenters who possess information (RFA) (5 U.S.C. 601 et seq.). The electronic form must be identified by on viral coat proteins causing estrogenic Agency’s activities related to these the docket control number ‘‘OPP– effects are requested to send such regulatory assessment requirements are 300367A.’’ Electronic comments on this information to EPA. discussed in the proposed rules. In this supplemental notice, EPA supplemental notice may be filed online EPA did not consider Title II of the describes in greater detail the rationale at many Federal Depository Libraries. Unfunded Mandates Reform Act of 1995 supporting the statement made in the VII. References (UMRA) (Pub. L. 104-4) at the proposal 1994 Federal Register (59 FR at 60513) stage because the proposed rules were that ‘‘plant-pesticides are likely to (1) Gibbs, A. and B Harrison. 1976. issued prior to its enactment. Although present a limited exposure of pesticidal Plant Virology: The Principles, Chap. 1. this supplemental notice is not subject substances to humans. In most cases, J. Wiley Sons, New York. to UMRA because it neither proposes or the predominant, if not the only route (2) Matthews, R.E.F. 1981. Plant finalizes any regulatory requirements, of exposure will be dietary. Significant Virology. Chaps. 12, 16, and 19. Second the applicability of the UMRA respiratory and dermal exposures will edition, Academic Press, New York. requirements will be addressed in the be unlikely.’’ No comments were (3) Provvidenti, R., R.W. Robinson, final rules. received on this statement during the and H.M. Munger. 1984. Occurrence of List of Subjects in 40 CFR Part 180 official comment period. Commenters Zucchini Yellow Mosaic Virus in may comment on this more detailed Curcubits from Connecticutt, New York, Environmental protection, rationale for viral coat proteins. Florida and California, Plant Disease Administrative practice and procedure, In this supplemental notice, EPA also 68:443-446. Agricultural commodities, Pesticides describes in greater detail how the (4) Beemster, A.B.R. and J.A. de Bokx. and pests, Plants, Plant-pesticides, rationale presented in the 1994 Federal 1987. Survey of Properties and Reporting and recordkeeping Register (59 FR at 60538) concerning the Symptoms of Potato Viruses, pp. 84-93 requirements safety for human consumption of food In: Viruses of Potatoes and Seed Potato Dated: May 7, 1997. containing viral coat proteins applies to Production; J.A. de Bokx and J.P.H. Lynn R. Goldman, infants and children. No comments vanderWant. PuDOC, Wageningen, The were received on this rationale during Netherlands. Assistant Administrator for Prevention, Pesticides and Toxic Substances. the official comment period. (5) Brun, G. 1991. Rhabdoviridae, Commenters may comment on this more Chap. 17, pp. 443-460; In: Atlas of [FR Doc. 97–12785 Filed 5–15–97; 8:45 am] detailed rationale specifically Invertebrate Viruses, eds. J.R. Adams BILLING CODE 6560±50±F federal register May 16,1997 Friday Federal ClassIAreas;ProposedRule Adversely AffectAirQualityinNon- Procedures forSourcesThatMay Air Quality(PSD)Program:PermitReview Prevention ofSignificantDeterioration 40 CFRParts51and52 Protection Agency Environmental Part VII 27157 27158 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules

ENVIRONMENTAL PROTECTION and Radiation (6102), 401 M Street, notice examines preliminary issues on AGENCY S.W., Washington, D.C. 20460, (202) which EPA seeks early public input. 260–7652. Part IV describes the workshops EPA 40 CFR Parts 51 and 52 will hold to facilitate public input. SUPPLEMENTARY INFORMATION: [FRL±5826±5] I. Overview II. The PSD Program RIN 2060±AH01 The PSD program authorizes States The central purpose of the PSD program is to protect clean air resources. Prevention of Significant Deterioration and Tribes to request redesignation of their lands as ‘‘Class I’’ areas. Over the Thus, the PSD program is an important of Air Quality (PSD) Program: Permit air pollution prevention program. The Review Procedures for Sources That past twenty years, only federally- recognized Tribes have sought genesis of the program was a lawsuit to May Adversely Affect Air Quality in enjoin EPA’s approval of state Non-Federal Class I Areas redesignation under this authority. EPA has approved Class I redesignations for implementation plans that allowed air AGENCY: Environmental Protection the Northern Cheyenne Indian quality degradation in areas having air Agency (EPA). Reservation, the Flathead Indian quality better than the national ambient ACTION: Advance Notice of Proposed Reservation, the Fort Peck Indian air quality standards. Sierra Club v. Rulemaking (ANPR). Reservation, and the Spokane Indian Ruckelshaus, 344 F.Supp. 253 (D.D.C. Reservation. See 40 CFR 52.1382(c) and 1972), aff’d per curiam, 4 Env’t Rep. SUMMARY: Under the Clean Air Act’s 52.2497(c). Recently, EPA approved Cases 1815 (D.C. Cir. 1972), aff’d by an PSD program, States and Tribes may, Class I redesignation of the Yavapai- equally divided court, sub. nom. Fri v. with EPA approval, redesignate their Apache Reservation, located in the State Sierra Club, 412 U.S. 541 (1973). The lands as ‘‘Class I’’ areas to enhance of Arizona. See 61 FR 56461 (Nov. 1, court granted the injunction reasoning protection of their air quality resources. 1996) (to be codified at 40 CFR 52.150). that the congressionally-declared This notice requests early public input EPA has proposed approval of the purpose of the Clean Air Act to ‘‘protect on preliminary issues in clarifying the Forest County Potawatomi Community and enhance’’ the quality of the nation’s PSD permit review procedures for new request for redesignation located in the air resources embodied a non- and modified major stationary sources State of Wisconsin. See 60 FR 33779 degradation policy. Sierra Club, 344 that may have an adverse effect on the (June 29, 1995). EPA will provide F.Supp. at 255–56. air quality of these non-Federal Class I opportunity for public comment and In response to the Sierra Club areas. EPA seeks to develop clarifying hold a public hearing before it makes a decision EPA adopted a PSD program. PSD permit procedures that are final decision on this proposed action. See 39 FR 42510 (Dec. 5, 1974). The effective, efficient and equitable. During EPA’s review of the Yavapai- administrative program was superseded DATES: Comments. All public comments Apache and Forest County Potawatomi by a congressionally-crafted program in must be received by August 14, 1997. redesignation requests, nearby States the 1977 amendments to the Clean Air Public Workshops. EPA will hold submitted formal objections to EPA. A Act. Public Law 95–95, 91 Stat. 685. public workshops on this rulemaking. A common concern has been confusion EPA presently has two sets of Federal Register notice announcing the about the PSD permit review procedures regulations implementing the 1977 dates of these workshops will be that would apply in these States in the statutory PSD program: (1) 40 CFR published at least 30 days prior to the event a Class I redesignation request is 51.166 establishes the requirements for workshop. granted, and what EPA’s specific role State-administered PSD programs, and ADDRESSES: Comments. Comments on would be in resolving any (2) 40 CFR 52.21 provides for Federal this notice should be mailed (in intergovernmental disputes that arise implementation of PSD requirements in duplicate if possible) to: U.S. EPA, Air over proposed permits for PSD sources States not having approved programs Docket Section, Air Docket A–96–53; that may adversely affect non-federal and for federally-recognized Indian 1 401 M Street, S.W., Washington, D.C. Class I areas. In response to these Tribes. 20460. concerns, EPA has initiated this A. PSD Areas Public Workshops. EPA will hold rulemaking to clarify the PSD permit public workshops in Phoenix, Arizona review and dispute resolution Areas nationwide are ‘‘designated’’ and in Chicago, Illinois. A Federal procedures for proposed new and based on their air quality status relative Register notice announcing the dates of modified major stationary sources to the national ambient air quality these workshops will be published at locating near non-Federal Class I areas. standards (NAAQS). The PSD program least 30 days prior to the workshops. The new procedures established in applies to areas designated ‘‘attainment’’ Please contact the EPA official listed this rulemaking would apply for any and ‘‘unclassifiable’’ under section 107 under FOR FURTHER INFORMATION State or Tribal lands redesignated as of the CAA, 42 U.S.C. Sec. 7407; these CONTACT if you are interested in Class I. Thus, the rulemaking is are areas that meet the NAAQS, or areas participating in the public workshops. intended to clarify PSD permit review that cannot be determined on the basis Public Docket. Supporting procedures for proposed PSD sources information for this rulemaking is 1 The 1990 amendments to the Clean Air Act that may adversely affect the air quality made relatively minor revisions to the PSD contained in Docket No. A–96–53. This of any State or Tribal non-Federal Class program. Pub. L. 101–549, 104 Stat. 2399. docket is available for public review and I area, and would set forth more specific Conforming changes have not been made to the copying between 8:00 a.m. and 5:30 procedures for EPA’s resolution of any implementing regulations. Also, EPA has proposed p.m., Monday through Friday at the rules under section 301(d) of the Clean Air Act that intergovernmental permit disputes would treat Federally-recognized Indian Tribes in EPA’s Air Docket Section, 401 M Street, which may arise. the same manner as States for purposes of S.W., Washington, D.C.; Room M–1500. The discussion in part II below numerous Clean Air Act programs including the A reasonable fee may be charged for contains an overview of the PSD PSD program. 59 FR 43 956 (Aug. 25, 1994). copying. Depending on their final form, these rules may program to help provide context and allow Tribes to administer Federally-approved PSD FOR FURTHER INFORMATION CONTACT: further understanding of the issues permit review programs in the same way that States David LaRoche, U.S. EPA, Office of Air presented in this notice. Part III of this do. Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27159 of available information as meeting or Major stationary sources generally between Federal and non-Federal Class not meeting the NAAQS. include sources that have the potential I areas. PSD areas are further categorized as to emit at least 250 tons of air pollution 1. Federal Class I Areas Class I, II or III. The classification of an annually. 40 CFR 51.166(b)(1)(i)(b) and area determines the maximum increase 52.21(b)(1)(i)(b). Major stationary a. Mandatory Federal Class I Areas in pollutant concentrations, or sources also include specific ‘‘listed’’ The Clean Air Act provides two ways ‘‘increment’’ of air quality deterioration, sources that have the potential to emit for Federal lands to be designated as allowed over a baseline air quality at least 100 tons per year of air Class I—either by congressional concentration. Class I areas have the pollution. 40 CFR 51.166(b)(1)(i)(a) and mandate, or by EPA approval of a State smallest increments and therefore allow 52.21(b)(1)(i)(a). The listed sources or Tribal request to redesignate Federal the least amount of air quality include, among other facilities, coal- lands. Congress specified certain deterioration. Conversely, Class III areas fired power plants (with more than 250 Federal lands as mandatory Class I have the largest air quality increments million British thermal units per hour areas. National parks larger than 6000 and allow the greatest deterioration. In heat input), primary zinc and copper acres, national memorial parks and all instances, the NAAQS are the smelters, and portland cement plants. national wilderness areas larger than overarching air pollution concentration Thus, the PSD program applies to 5000 acres, and international parks that ceilings. That is, regardless of the size relatively large stationary sources. were in existence on August 7, 1977 are of the increment, the NAAQS may not Major modifications to existing major designated by statute as mandatory be violated in a PSD area. stationary sources are also subject to the Class I areas. CAA Sec. 162(a). These There are PSD increments for PSD preconstruction review permit areas cannot be redesignated. particulate matter, sulfur dioxide and program. Major modifications include a nitrogen dioxide. EPA’s PSD regulations physical or operational change at a b. Other Federal Class I Areas establish the incremental amount of air major stationary source that would Congress also authorized States and quality deterioration allowed for these result in a significant net emissions Tribes to seek redesignation of other pollutants in Class I, II and III areas. 40 increase in any regulated air pollutant. Federal public lands within their CFR 51.166(c) and 52.21(c). 40 CFR 51.166(b)(2) and 52.21(b)(2). boundaries as Class I. These are lands When Congress enacted the PSD currently designated as Class II. To program in 1977 it provided that C. General PSD Preconstruction Review Permit Requirements inform such redesignation decisions, specified Federal lands, including Congress directed the Federal Land certain national parks and wilderness In broad overview, the PSD Managers (FLM) to review all national areas, must be designated as Class I preconstruction review permit program monuments, primitive areas and areas and may not be redesignated to requires the owner or operator of a national preserves and to recommend another classification. Because they may proposed source to adopt the best the areas having important air quality not be redesignated, these Federal areas available control technology (BACT) related values (AQRVs) be redesignated are called mandatory Class I areas. CAA and analyze the air quality impacts as Class I. CAA Sec. 164(d). The FLM Secs. 162 and 163, 42 U.S.C. Secs. 7472 associated with the source. CAA Sec. is defined as the Secretary of the Federal and 7473. 165(a), 42 U.S.C. Sec. 7475(a). BACT is Department with authority over the The statute also carried forward as defined in section 169(3) of the CAA, 42 lands.2 CAA Sec. 302(i), 42 U.S.C. Sec. Class I areas any areas redesignated as U.S.C. Sec. 7479(3) as an emission 7602(i). The recommendations have not Class I under EPA’s pre-1977 limitation based on the maximum resulted in the redesignation of any regulations. CAA Sec. 162(a). The degree of pollutant reduction that is Federal lands from Class II to Class I. Northern Cheyenne reservation was the achievable taking into account energy, The only Federal Class I areas that only redesignated Class I area affected environmental and economic impacts. presently exist are the original by this provision. See Nance v. EPA, The PSD air quality impact mandatory areas. 645 F.2d 701 (9th Cir. 1981), cert assessment involves several denied, Crow Tribe of Indians v. EPA, considerations. Generally, the owner or 2. Non-Federal Class I Areas 454 U.S. 1081 (1981). operator of the proposed source must Class I areas may also be created if All other PSD areas of the country demonstrate that it will not contribute EPA approves a State or Tribal request were designated as Class II areas under to air pollution that violates any to redesignate its own lands as Class I. the 1977 Clean Air Act amendments. NAAQS or PSD increment. CAA Sec. The resulting areas would be non- CAA Sec. 162(b). At the same time, 165(a)(3). The source must also analyze Federal Class I areas. The PSD permit States and Tribes were authorized to the ambient air quality, climate and review procedures that apply to new or seek redesignation of their Class II areas meteorology, terrain, soils and modified PSD sources that may as Class I or Class III. CAA Sec. 164, 42 vegetation, and visibility at the site and adversely affect these non-Federal Class U.S.C. Sec. 7474. As noted, several in the area potentially affected by its I areas are the central focus of this Tribes have sought a Class I air quality emission. CAA Sec. 165(e). notice. designation. Currently, there are no As noted in part I, a few Tribes have D. Special PSD Program Protection for Class III areas. exercised their discretion to seek Class I Areas heightened air quality protection status B. PSD Sources There are additional, special under the PSD program by requesting The PSD preconstruction review protections under the PSD program that redesignation of lands within permit program applies to new and apply for Class I areas. As examined in reservation boundaries as Class I areas. modified major stationary sources. more detail below, the statute appears to States may similarly request Construction, or subsequent operation, distinguish between the preconstruction of new major stationary sources and review permit procedures that apply for 2 The FLM authority has been delegated to other major modifications to existing major Federal Class I areas and non-Federal officials within these Departments. For example, the Assistant Secretary for Fish and Wildlife and stationary sources are prohibited unless Class I areas. As a necessary Parks is the FLM for areas under the jurisdiction of the source obtains a permit meeting PSD prerequisite, the discussion below first the National Park Service and the U.S. Fish and requirements. explores in more detail the delineation Wildlife Service. 27160 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules redesignation of their lands as Class I in 3. PSD Permit Review Provisions for certifies, then the permit may be issued. accordance with the procedures Federal and Non-Federal Class I Areas Conversely, even if a proposed source outlined at 40 CFR 51.166(g) and A congressionally-declared purpose of will not cause or contribute to a 52.21(g). Thus, the permit review the PSD program is to preserve, protect, violation of a Class I increment, the procedures developed in this and enhance the air quality in national FLM may nevertheless demonstrate to rulemaking would apply equally for all parks, national wilderness areas, the satisfaction of the permitting non-Federal Class I areas—State or national monuments, national authority that the source will have an Tribal. seashores, and other areas of special adverse impact on AQRVs. If so demonstrated, then the permit shall not It is important to understand the national or regional natural, recreational, scenic, or historic value. be issued. CAA Sec. 165(d)(2)(C). Thus, differences implied by the use of the compliance with the Class I increments CAA Sec. 160(2). To this end, Congress terms ‘‘Federal’’ and ‘‘non-Federal’’ determines the burden of proof for established special PSD permit review areas. The PSD program treats as demonstrating the presence or absence procedures that apply to proposed PSD ‘‘Federal’’ lands various national public of an adverse impact on AQRVs. lands that the Federal government owns sources whose emissions may adversely EPA recently proposed significant and for which it has stewardship impact Federal Class I areas. Based on changes to its PSD and nonattainment responsibility. These public lands the statutory text, statutory structure New Source Review (NSR) program. The include the following: national parks, and legislative history it appears that proposal includes revisions to the PSD these special permit review procedures, national memorial parks, national permit review procedures for sources set out at section 165(d) of the CAA, are wilderness areas, national monuments, that may adversely impact Federal Class intended to apply only to Federal lands national lakeshores and seashores, I areas. See 61 FR 38250, 38282–38295 originally designated, or subsequently national primitive areas, national (July 23, 1996). The proposed revisions redesignated, as Class I areas. The preserves, national recreation areas, are intended to improve coordination legislative history indicates that these and cooperation, and clarify relative national wild and scenic rivers, national special requirements were intended ‘‘to wildlife refuges, and other similar responsibilities among FLMs, proposed provide additional protection for air sources, and permitting agencies. national public lands. See, e.g., CAA quality in areas where the Federal Secs. 160(2), 162(a) and 164(a), (d). The Part III below examines whether Government has a special stewardship EPA’s permit review procedures for term ‘‘non-Federal’’ refers to State lands to protect the natural values of a non-Federal Class I areas should be or to lands within the boundaries of an national resource. Such areas are the similar to EPA’s recent proposal for Indian reservation that are not Federal federally-owned class I areas under the Federal Class I areas in all respects or lands within the meaning of the CAA’s bill.’’ S. Rep. No. 127, 95th Cong., 1st whether some differences must or PSD program. See, e.g., CAA Sec. 164(c). Sess. at 34 (1977) (emphasis added). should exist. While, as noted above, For example, the legislative history The central focus of the permit review section 165(d) contains specific permit distinguishes between the ‘‘Federal procedures for Federal Class I areas is to review procedures for Federal Class I lands’’ which the Federal government protect the air quality related values areas, the Clean Air Act does not manages as a ‘‘property owner * ** (AQRVs) of these areas. The Clean Air contain such specific provisions for under the stewardship of various Act specifies that AQRVs include non-Federal Class I areas. However, the Federal agencies’’ and tribal lands. visibility. CAA Sec. 165(d). The CAA does contain provisions aimed at Senate Comm. on Environment and legislative history further provides that protecting air quality in non-Federal Public Works, 95th Cong., 2d Sess., A for Federal Class I areas the term AQRVs Class I areas when a dispute arises Legislative History of the Clean Air Act includes ‘‘the fundamental purposes for between affected States or Tribes. The Amendments of 1977 724 (Comm. Print which such lands have been established Clean Air Act recognizes that a PSD 1978) (statement of Senator Muskie). and preserved by the Congress and the source proposing to locate in one In a recent proposal to reform the PSD responsible Federal agency. For jurisdiction can have adverse effects on example, under the 1916 Organic Act to program, EPA explained that lands the air quality of another jurisdiction. establish the National Park Service (16 within reservation boundaries may or By contrast with the provisions that give U.S.C. 1), the purpose of such national may not be Federal lands within the the FLM responsibility for protecting park lands ‘is to conserve the scenery meaning of the PSD program. In Federal Class I areas, any State or Tribal and the natural and historic objects and government, concerned that a proposed fulfilling its fiduciary responsibility the wildlife therein and to provide for source outside its jurisdiction may toward federally-recognized Indian the enjoyment of the same in such adversely impact the air quality of a Tribes, the Federal government holds manner and by such means as will leave non-Federal Class I area, may seek to some Tribal lands in ‘‘trust’’ for the them unimpaired for the enjoyment of protect such area. The Clean Air Act benefit of the Tribe. Such lands may future generations.’ ’’ S. Rep. No. 127, establishes a special dispute resolution have a federal feature under Federal 95th Cong., 1st Sess. 36 (1977). process to address such Indian law but are not ‘‘Federal’’ lands Specifically, for Federal Class I areas, intergovernmental disagreements. within the meaning of the PSD program. the statute places an ‘‘affirmative The Clean Air Act provides that the However, national public lands within responsibility’’ on the FLM to protect Governor of an affected State or the reservation boundaries, such as national the air quality related values of Federal Indian ruling body of an affected Indian monuments, are included within the lands. CAA Sec. 165(d)(2)(B). Tribe may request the EPA term ‘‘Federal’’ lands. See 61 FR 38250, The FLMs protect AQRVs through a Administrator to enter negotiations with 38293, n. 71 (July 23, 1996). Thus, the prescribed statutory role. If the the parties involved to resolve the PSD permit review procedures for State proposed source will cause or dispute. If the parties are unable to lands and lands within Indian contribute to a violation of a Class I reach agreement, the Clean Air Act reservation boundaries that are non- increment, then the owner or operator makes EPA the ultimate arbiter of the Federal or non-public lands and must demonstrate to the satisfaction of intergovernmental dispute. Section redesignated as Class I are the subject of the FLM that the emissions will not 164(e) of the CAA establishes the this notice. adversely impact AQRVs. If the FLM so special process for resolving these Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27161 intergovernmental disputes, and reads developing these rules EPA will be Governing Body for non-Federal lands in relevant part as follows: guided by the core purposes of the within their respective jurisdictions.’’ [I]f a permit is proposed to be issued for Clean Air Act and the PSD program. As 61 FR 38283–38284. any new major emitting facility proposed for noted, the genesis of the PSD program EPA has also proposed significance construction in any State which the Governor was the non-degradation policy levels for all Class I areas. 61 FR 38291– of an affected State or governing body of an embodied in section 101(b)(1) to 38292. Under the proposal, PSD sources affected Indian tribe determines will cause or ‘‘protect and enhance’’ air quality with a predicted (modeled) air quality contribute to a cumulative change in air resources to ‘‘promote the public health impact below the significance levels quality in excess of that allowed in this part and welfare.’’ The congressionally would be excluded from the within the affected State or tribal reservation, declared objectives of the PSD program requirement to conduct a full Class I the Governor or Indian ruling body may include ensuring that ‘‘economic growth request the Administrator to enter into increment analysis. EPA indicated that negotiations with the parties involved to will occur in a manner consistent with permitting authorities could use the resolve such dispute. If requested by any the preservation of existing clean air finding of an insignificant impact to State or Indian tribe involved, the resources’’ and ensuring that ‘‘any determine that the source’s emissions Administrator shall make a recommendation decision to permit increased air would not contribute to an increment to resolve the dispute and protect the air pollution’’ is made ‘‘only after careful violation. However, an impact below the quality related values of the lands involved. evaluation of all the consequences significance level of the PSD increments If the parties involved do not reach ** * and after adequate procedural would not necessarily indicate that the agreement, the Administrator shall resolve opportunities for informed public proposed source also has an the dispute and his determination, or the participation.’’ CAA Sec. 160 (3) and (5), insignificant impact on AQRVs. results of agreements reached through other 42 U.S.C. 7470 (3) and (5). EPA seeks to means, shall become part of the applicable In the pending rulemaking to reform plan and shall be enforceable as part of such develop workable rules that consider the PSD program, EPA also clarified the plan. preservation of existing clean air PSD requirements applicable to non- resources and potential impacts on Federal lands redesignated as Class I Thus, the broad contours of this economic growth. EPA intends to provision include (but are not limited areas. 61 FR 38293–38295. EPA fashion rules that are clear, sensible and explained that States and Tribes with to) intergovernmental PSD permit improve the PSD permit process. disputes over potential impacts on non- non-Federal Class I areas may identify EPA seeks public input on the AQRVs for their lands and may pursue Federal Class I areas.3 This provision is following preliminary issues for use in codified in 40 CFR 52.21(t). protection of the AQRVs through the developing proposed revisions to its intergovernmental dispute resolution In this rulemaking, EPA endeavors to PSD permit review procedures at 40 clarify the PSD permit review provisions under section 164(e) of the CFR 51.166 and 52.21. EPA’s public CAA. EPA proposed to adopt a procedures in a manner that will workshops, discussed in Part IV of this facilitate amicable resolution of regulation at 40 CFR 51.166(t) to document, will focus on these implement section 164(e), as a intergovernmental disputes about preliminary issues and other issues potential impacts on non-Federal Class companion to the regulation currently raised by members of the public. EPA in place at 40 CFR 52.21(t). 61 FR I areas without the need for recourse to also encourages public commenters to EPA. Additionally, EPA will examine 38293–38295. EPA also proposed to address the issues in their written define ‘‘Federal Class I areas’’ to clarify the methods EPA should consider and submissions to the Agency. the procedures it should employ in the the distinctions between Federal and event it is necessary for EPA to resolve A. Scope of New Rulemaking Initiative non-Federal Class I areas. 61 FR 38293– an intergovernmental PSD permit EPA seeks public input on the 38295. dispute. In resolving any appropriate scope of this regulatory As noted, section 164(e) provides that intergovernmental permit disputes EPA initiative. Currently, after more than 20 a State or Tribe may request will act consistent with its trust years of authority to redesignate, there intergovernmental dispute resolution if responsibilities toward Tribes. are five non-Federal Class I areas. By a State or Tribe determines that contrast, there are more than 150 emissions from a proposed PSD source III. Preliminary Issues mandatory Federal Class I areas. Thus, ‘‘will cause or contribute to a The overall objective of the non-Federal Class I areas are not cumulative change in air quality in rulemaking revisions addressed in this nationally prevalent in the same manner excess of that allowed in [the PSD notice is to clarify and improve the PSD as Federal Class I areas. program] within the affected State or permit review procedures applicable to EPA already has detailed PSD permit tribal reservation.’’ Section 164(e) proposed sources that may adversely review procedures in place. In addition, further provides that if requested by the affect non-Federal Class I areas.4 In EPA’s recent proposal to reform its PSD State or Tribe involved, EPA shall make rules includes proposed revisions a recommendation to resolve the 3 Further, several additional provisions of the related to permit review procedures for dispute and ‘‘protect the air quality Clean Air Act and PSD program are aimed at Federal and non-Federal Class I areas. related values of the lands involved.’’ If curbing interjurisdictional air pollution transport. A the parties do not reach agreement, EPA purpose of the PSD program is to assure that 61 FR 38282–38295. For example, EPA emissions from a source in one jurisdiction do not proposed to define the term ‘‘air quality shall resolve the dispute and its interfere with PSD in another jurisdiction. CAA related value’’ for both Federal and non- determination shall become part of the Sec. 160(4). State air quality management plans are Federal Class I areas as ‘‘a scenic, applicable plan. Because section 164(e) required to contain provisions that prohibit in-State specifically provides for protection of emissions from interfering with PSD measures in cultural, physical, biological, ecological, another State. CAA Sec. 110(a)(2)(D). The interstate or recreational resource which may be AQRVs, EPA has previously explained pollution abatement provisions of the CAA direct affected by a change in air quality, as its view that States and Tribes may seek State Implementation Plans (SIPs) to require PSD defined by the FLM for Federal lands protection of AQRVs through these sources to notify nearby States whose air pollution intergovernmental dispute resolution levels may be affected by the source. CAA Sec. 126. and as defined by a State or Indian 4 EPA is not proposing to modify its rules on the provisions. [Letter to George Meyer, PSD redesignation process itself. The statute clearly regulations (i.e., 40 CFR 51.166(g) and 52.21(g)) Wisconsin Department of Natural prescribes the process and the implementing provide adequate guidelines. Resources, from Valdas Adamkus, EPA 27162 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules

Regional Administrator for Region V published on July 23, 1996 (61 FR In its July 1996 proposed revisions to (July 27, 1994).] 38250). the PSD rules, EPA generally proposed In the PSD reform proposal, EPA Thus, the question for this new to require submittal of permit explained its interpretation of the rulemaking initiative is what additional applications to the FLMs for sources language authorizing intergovernmental changes to the PSD permit program are locating within 100 kilometers (km) of dispute resolution if a proposed source needed to clarify and improve the a Federal Class I area. EPA also ‘‘will cause or contribute to a permit review procedures for proposed proposed to require basic source cumulative change in air quality in sources that may adversely affect air information concerning sources locating excess of that allowed in [the PSD quality in non-Federal Class I areas. more than 100 km from a Federal Class program].’’ EPA stated that a State or EPA requests public input on the I area to be input into an electronic Tribe may request intergovernmental appropriate scope of this rulemaking, database in lieu of transmitting entire dispute resolution when a State or Tribe considering the previously proposed permit applications to the FLMs. The determines that a proposed source will revisions to improve the PSD program database enables the FLMs to review cause or contribute to a violation of the and the relatively small number of non- information about proposed PSD NAAQS or PSD increment or will harm Federal Class I areas. sources and determine whether further AQRVs identified by the State or Tribe. information about the project is needed. 61 FR 38294. B. Improving Coordination Between 61 FR 38287–38288. EPA believes its interpretation is Permitting Authorities and States or EPA’s current regulations generally supported by the plain language of the Tribes With Non-Federal Class I Areas require State-administered PSD statute and statutory structure. The The July 1996 proposed rules to programs to send the public notice of statutory language at issue is reform the PSD program contained PSD permits to any State or Indian expansive—referring generally to provisions to address concerns about Governing Body whose lands may be ‘‘changes in air quality.’’ The the PSD permit review procedures for affected by emissions from the source or increments are a central limit on air Federal Class I areas. 61 FR 38282– modification. 40 CFR 51.166(q)(2)(iv). quality deterioration established under 38295. The proposal is intended to The public notice includes the the PSD program and well within the reduce delays and disputes associated following information: indicates that a ambit of this language. At the same with permitting near Federal Class I PSD permit application has been time, increments are explicitly referred areas by facilitating coordination received, states the permitting to elsewhere in the PSD provisions as between the FLM, the permit applicant authority’s preliminary determination to ‘‘maximum allowable increases’’ and and the permit authority, and clarifying approve or deny the permit, describes ‘‘maximum allowable concentrations’’ the relative roles and responsibilities of the degree of increment consumption of pollutants. CAA Secs. 163 & the involved parties. A central goal of that is expected, and addresses the 165(a)(3)(A). Thus, EPA believes that improved coordination is to help opportunity for comment at a public the language in section 164(e)is not identify potential disagreements early in hearing as well as written public confined to PSD increments. The the permit process, when it is less comment. statutory text also appears to encompass disruptive. Roles are clarified to ensure EPA requests public comment on adverse impacts on AQRVs due to whether EPA should clarify when a that responsibilities are reasonably, and ‘‘changes in air quality.’’ EPA believes permit authority must provide an mutually, allocated. AQRVs are properly a basis for initiating affected State or Tribe with a copy of the EPA seeks public comment on dispute resolution since their protection public notice. EPA also requests whether some of the basic policy is a stated purpose of the provision. 61 comment addressing whether, when a concerns reflected in EPA’s recent FR 38294. In other words, to allow non-Federal Class I area may be proposal to revise the PSD rules for states or tribes to initiate affected, EPA should also require permit Federal Class I areas are also concerns intergovernmental dispute resolution authorities to provide affected States or because of adverse impacts on AQRVs is that should be addressed when Tribes with copies of the permit consistent with the statutory language in developing proposed programmatic application or other advance notice section 164(e) that calls for EPA to improvements for non-Federal Class I before the permit authority makes a ‘‘make a recommendation to resolve the areas. These basic policy concerns, as preliminary determination to grant or they apply to non-Federal Class I areas, dispute and protect the air quality 5 deny the permit. related values of the land involved.’’ are outlined below. For example, commenters should Today, EPA seeks further public 1. Permit Application Coordination address whether EPA should establish comment on this interpretation. standard procedures for permit The proposed revisions to reform the A State or Tribe with a non-Federal application notification of sources that PSD program are the outgrowth of Class I area will be aware of sources may adversely affect non-Federal Class extensive discussions with proposing to locate within its I areas, and how such notification could representatives of State and local jurisdiction and can work with the be effectively and efficiently governments, regulated industry, permitting authority to review and accomplished. Using the distance Federal Land Managers, and resolve potential impacts on non- between the proposed source and non- environmental organizations. EPA held Federal Class I areas. However, if the Federal Class I area as a basis for a public hearing in September 1996 and source is located in another jurisdiction, determining whether coordination is has provided abundant opportunity for a State or Tribe can only effectively necessary is simplistic and clear. public comment. Except for protect its non-Federal Class I area from However, rigid distances alone can be interpretation of section 164(e) potentially adverse effects if it knows over- and under-inclusive. For example, discussed immediately above, regarding about the proposed source. if States or Tribes with non-Federal the basis for initiating Class I areas were required to be notified intergovernmental disputes, EPA does 5 As noted, this notice does not seek public of all proposed sources within 100 km comment on EPA’s proposed revisions to the permit not intend to reopen in this rulemaking review procedures for Federal Class I areas of the Class I area, then this may place the proposals advanced in the separate published on July 23, 1996 and already subjected a burden on some sources that do not rulemaking to reform the PSD program to public comment. threaten the area and exclude some Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27163 large sources that may impact the area. reasonable steps that can be taken by negotiations with the parties involved to EPA seeks suggestions on how to ensure States or Tribes with AQRVs to inform resolve the dispute. Then, if requested that States and Tribes with non-Federal PSD permit agencies and applicants by a State or Tribe, EPA will make a Class I areas receive adequate about the AQRVs. Commenters should recommendation to resolve the dispute information about proposed sources that also suggest the type of information that and protect the AQRV’s of the lands may affect the areas without placing would be useful to potential permit involved. If that does not lead to undue burdens on PSD permit applicants and permit agencies. resolution, EPA is ultimately called applicants and permit agencies. A related issue is the level of upon to resolve such disputes regardless EPA also requests public comment on technical support that should of whether the proposed permit is being how to facilitate intergovernmental accompany identification of AQRVs. reviewed under a State, Tribal, or coordination during the permit review Technical or scientific information Federally administered program. EPA process to avoid the need for EPA to about AQRVs may be necessary for a seeks public input on the issues resolve disputes over potential impacts neighboring permit agency and permit outlined below related to EPA’s on non-Federal Class I areas. EPA’s July applicant to understand and address resolution of permit disputes about 1996 proposal contained several potential concerns. EPA requests potential air pollution impacts on non- potential revisions to the PSD rules that comments on whether EPA should Federal Class I areas. call for consultation between the propose rules addressing the technical permitting authority and FLM at various support information for AQRVs 1. EPA’s Discretion to Fashion key stages of the permit process. 61 FR identified by a State or Tribe, and seeks Reasonable Solutions 38283–38295. Intergovernmental input on approaches that may be EPA has broad discretion in crafting consultation may facilitate resolution of appropriate. solutions to intergovernmental permit concerns. Further, the earlier all parties 3. No Affirmative Responsibility to disputes under section 164(e) of the are aware of potential concerns, then the Protect AQRVs of Non-Federal Lands CAA. The key statutory text in section sooner the concerns can be resolved and 164(e) provides as follows: constructive discourse can begin. EPA As noted, the Clean Air Act places an requests public comment addressing affirmative responsibility on FLMs to If requested by any State or Indian tribe consultation and other measures that protect the AQRVs of Federal Class I involved, the Administrator shall make a recommendation to resolve the dispute and can be taken to help resolve areas. Thus, the FLM has a special duty under Federal law to protect the air protect the air quality related values of the intergovernmental permit disputes at an lands involved. If the parties involved do not early stage in the permit process. quality related resources of Federal reach agreement, the Administrator shall Commenters should address whether Class I areas. resolve the dispute and his determination, or consultation would be productive, what However, it does not seem the results of agreements reached through alternative measures would be appropriate for a State or Tribe with a other means, shall become part of the appropriate, and what stages in the non-Federal Class I area to be under a applicable plan and shall be enforceable as permit process consultation should be similar responsibility to protect AQRVs. part of such plan. This is an area where a departure formalized. Thus, Congress has directed EPA to between Federal and non-Federal lands ‘‘make a recommendation to resolve the 2. Identifying and Disseminating seems appropriate. Because a decision dispute and protect the air quality Information About Air Quality Related by a State or Tribe to seek redesignation related values of the lands involved.’’ If Values of its lands as a Class I area is entirely the parties cannot reach agreement, EPA As noted, EPA’s July 1996 proposed discretionary, EPA believes that it is authorized to ‘‘resolve the dispute.’’ PSD revisions define ‘‘AQRVs’’ for would be inappropriate to place an The statute does not specify or constrain Federal and non-Federal lands as affirmative responsibility on a State or the measures or methods EPA may visibility or a scenic, cultural, physical, Tribe to challenge permit applications employ to resolve the dispute. biological, ecological, or recreational from proposed sources locating in other resource that may be affected by a jurisdictions. Thus, EPA is disinclined EPA’s discretion to resolve disputes change in air quality, as defined by the in this rulemaking to place any duty on may mean that EPA draws from a Federal Land Manager for Federal lands an affected State or Tribe to invoke the variety of methods in resolving any and as defined by the applicable State intergovernmental dispute resolution particular PSD permit dispute. This will or Indian Governing Body for non- process and intends to leave this enable EPA to tailor a solution to the Federal lands. 61 FR 38284. EPA’s July entirely within the State’s or Tribe’s circumstances and issues presented. For 1996 notice sought public comment on discretion. EPA solicits public comment example, in the event that EPA is this proposed definition and EPA is not on this proposed approach. requested to resolve a dispute involving seeking further comment in today’s a proposed source’s potential impacts notice. C. EPA Resolution of Intergovernmental on AQRVs and the affected governments However, EPA does request public Permit Disputes disagree about the nature of the input on measures to encourage When a State or Tribe does elect to projected effects, EPA may need to identification and dissemination of invoke the dispute resolution process, explore and resolve underlying information about the AQRVs for non- section 164(e) of the CAA makes EPA technical and scientific issues. EPA Federal lands. EPA’s July 1996 proposal the arbiter of intergovernmental PSD seeks comment on whether it should included provisions for the public permit disputes. Section 164(e) of the elaborate how it might evaluate such dissemination of information about the CAA provides that if the Governing technical or scientific disagreements. AQRVs for Federal lands. 61 FR 38283– Body of an affected Indian Tribe or the Post-construction monitoring may be 86. EPA proposed to place Governor of an affected State determines an effective way to resolve some responsibility on the FLM to ensure that that a proposed PSD source ‘‘will cause disputes conditionally. Where there are permit applicants and permit agencies or contribute to a cumulative change in irreconcilable disputes over the have adequate information about any air quality in excess of that allowed potential impact of a proposed source, AQRV which the FLM has identified. [under the PSD program],’’ the Tribe or post-construction monitoring and Public commenters should address State may request EPA to enter into subsequent evaluation provides a means 27164 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules to ascertain actual source impacts and concentration level).6 CAA Sec. proposed source will cause or assess the need for any further action. 165(d)(2)(C)(iv), 40 CFR 51.166(p)(4) contribute to a violation of a NAAQS or EPA also requests comment on and 52.21(p)(5). Thus, in limited increment, or contribute to AQRV whether it should address measures that circumstances for Federal Class I areas, impacts. The bases for invoking the PSD could be employed to mitigate effects on the Clean Air Act contemplates that a intergovernmental dispute provisions AQRVs. In the July 1996 PSD PSD permit could be issued for a source arguably suggest that Class I increments that exceeds the Class I increments. should be among the concerns protected rulemaking proposal, EPA explored However, section 164(e) does not in resolving disputes. methods to mitigate adverse impacts on contain a similar express exemption of Further, for non-Federal Class I areas, the AQRVs of Federal Class I areas to the Class I increments for non-Federal there are additional reasons to give the allow permitting of sources that would lands. Further, other provisions of the Class I increments consideration otherwise face permit modification or Clean Air Act specify that a proposed independent of AQRVs. Because denial. 61 FR 38290–38291. Similarly, if source must comply with increments to Congress gave States and Tribes broad resolution of an intergovernmental qualify for a PSD permit. For example, latitude to seek redesignation of non- permit dispute necessitated permit as underscored, section 163 establishes Federal lands as Class I areas, States and modification or denial to protect the the Class I increments providing that Tribes could seek redesignation to AQRVs of non-Federal Class I areas, ‘‘the maximum allowable increase in prevent incremental air quality mitigation of source impacts through concentrations of sulfur dioxide and deterioration without regard to emissions offsets from other sources or particulate matter shall not exceed’’ protection of AQRVs. In such a other mitigation techniques may present certain prescribed amounts. See also 40 situation, compliance with Class I a means to avoid harsher results. CFR 51.166(c) and 52.21(c). Further, increments enables States and Tribes to It is also possible that a proposed section 165(a) directs PSD sources to advance public health and welfare source may not adversely impact demonstrate that emissions will not concerns associated with air quality AQRVs but still exceed Class I contribute to an increment exceedance degradation independent of AQRVs. increments. If that is the case, EPA may more than one time per year. Thus, the Thus, EPA may be requested to resolve consider whether, in certain absence of an explicit statutory a dispute involving only a PSD circumstances and consistent with its exemption to the Class I increments for increment, where no AQRV has been non-Federal Class I areas would suggest defined. In that case, it could be argued trust responsibilities toward tribes, it is that section 164(e) should not be that EPA should never waive a PSD within EPA’s discretion under section construed to provide one. increment in a non-Federal Class I area 164(e) to allow issuance of a permit that Additionally, for non-Federal Class I because the State’s or Tribe’s goal in exceeds Class I increments. It is unclear areas, the Class I increments appear to redesignating the area to Class I may whether section 164(e) would authorize have relevance independent of AQRVs. have been solely the protection of the such action by EPA. This issue is The intergovernmental dispute increments. examined in more detail below. resolution provisions for non-Federal At the same time, the section 164(e) As noted, the Class I increments are lands provide that a State or Tribe may dispute resolution provisions direct the most stringent PSD increments. object to a proposed PSD permit if it EPA to ‘‘make a recommendation to Therefore, it is conceivable that a determines that emissions ‘‘will cause resolve the dispute and protect the air proposed source could exceed a Class I or contribute to a cumulative change in quality related values of the lands increment and yet not adversely impact air quality in excess of that allowed involved.’’ This might suggest that AQRVs. The Clean Air Act expressly [under Part C of the Act—the PSD AQRVs, not increments, are the recognizes this situation for Federal program] within the affected State or principal focus of protection under Class I areas. As noted, under the tribal reservation.’’ CAA Sec. 164(e). As section 164(e). But, relying on the specific statutory provisions for Federal noted, EPA has previously proposed to objective of protecting AQRVs in section Class I areas at section 165(d)(2) of the interpret excess air quality changes to 164(e) as a basis for a Class I increment CAA, a source’s contribution to the include a proposed source’s exemption could be very broad since Class I increments determines who contribution to a NAAQS violation, PSD this explanation could conceivably bears the burden of proof for increment violation or AQRV impact. 61 justify an exemption of the Class II or III demonstrating the presence or absence FR 38294. Thus, EPA interprets this increments. Perhaps in exercising its of an adverse impact on AQRVs and is provision to direct EPA mediation, at administrative discretion under section the request of a State or Tribe, when a 164(e) EPA would be confined to a Class not decisive of whether a permit may be State or Tribe determines that a I increment exemption, by direct issued. If a proposed source will analogy to the statutory exemption contribute to a Class I increment 6 The source must demonstrate compliance with provisions for Federal Class I areas. violation in a Federal Class I area, then a concentration level for sulfur dioxide measured EPA requests comment on whether the owner or operator may nevertheless over three hours that is more stringent than the EPA should explore in this rulemaking demonstrate to the satisfaction of the Class II increment but less stringent than the Class I increment. CAA Sec. 165(d)(2)(C)(iv), 40 CFR EPA’s discretion to waive the Class I FLM that the source will not adversely 51.166(p)(4) and 52.21(p)(5). If the FLM declines to increments for non-Federal Class I areas impact AQRVs. Therefore, the FLM may certify that no adverse impact will occur, the permit in resolving permit disputes under conclude that AQRVs are not threatened must be denied or modified. If the proposed source may not be constructed because of the sulfur section 164(e) of the CAA. While it is despite the Class I increment violation. dioxide increment for periods of twenty-four hours clear that such action is impermissible If the FLM certifies that no adverse or less, the Governor may grant a variance of the unless AQRVs will also be protected, impact will occur despite the source’s increment if doing so will not adversely affect there may nevertheless be violation of the Class I increment, the AQRVs and the FLM concurs. If the Governor and FLM do not agree, their respective circumstances when Class I increment permitting authority may issue a PSD recommendations may be transmitted to the violations occur that do not threaten permit provided the source President who may grant the variance if it is in the AQRVs. EPA also seeks comment on the demonstrates compliance with the Class national interest and the facility meets specific circumstances under which it might be II increments (as well as a more limits on its sulfur dioxide concentrations. CAA Sec. 165(d)(2)(D), 40 CFR 51.166 (p)(5) through appropriate for EPA to consider stringent three-hour sulfur dioxide (p)(7) & 52.21 (p)(6) through (p)(8). providing an exemption for a Class I Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules 27165 increment. EPA also requests comment quality impacts of proposed PSD amicable resolution of on how to weigh competing concerns in sources and is codified at 40 CFR part intergovernmental permit disputes? determining whether a Class I increment 51, Appendix W. 12. Additional Clarifying Regulatory exclusion may be appropriate. For Changes. What regulatory revisions are E. Summary of the Principal Issues example, if a State or Tribe with a Class necessary to clarify the distinction I area was very concerned about To facilitate public input, EPA has between Federal and non-Federal Class increases in direct particulate matter summarized the issues raised for I areas? pollution, perhaps it would be comment in this notice. 13. Regulatory Flexibility Act. What appropriate for EPA to consider an 1. Scope of Rulemaking. What steps can EPA take in this rulemaking exclusion from the short-term sulfur regulatory changes should EPA consider to facilitate public participation by any dioxide increment but not from PM–10. in this rulemaking beyond the PSD small entities that may be adversely In sum, EPA requests public comment programmatic revisions proposed in affected and to mitigate any such on whether EPA should address in this EPA’s July 23, 1996 Federal Register impacts? rulemaking some of the potential notice (61 FR 38250)? 14. Paperwork Reduction Act. What measures and tools that may be 2. Analogy to Federal Class I Area steps can EPA take in this rulemaking employed to resolve intergovernmental Issues. To what extent should EPA draw initiative to ensure that any disputes and, if so, what approaches from the PSD permit review procedures informational requirements are may be appropriate. Alternatively, it proposed for Federal Class I areas in the necessary and of practical utility, and to may be appropriate for EPA to adopt July 23, 1996 notice in considering rule minimize the burden of any information very general rules that enable EPA to changes for non-Federal Class I? requirements? take any number of actions depending 3. Permit Application Notification. upon the circumstances. What effective, and efficient, measures IV. Public Workshops should EPA consider to ensure that EPA recognizes the complexities of 2. Dispute Resolution Procedures States and Tribes with non-Federal the issues surrounding the PSD permit EPA also seeks input on whether and Class I areas receive adequate application process. EPA seeks input to what extent EPA should prescribe the information about proposed sources that from all interested members of the procedures to be followed in resolving may adversely impact such areas? public in formulating a reasonable, intergovernmental permit disputes 4. Intergovernmental Coordination. workable approach to the PSD permit under section 164(e). For example, EPA How can EPA facilitate review procedures for sources is interested in the public’s views about intergovernmental consultation and potentially impacting non-Federal Class whether EPA should establish a coordination during the permit review I areas. particular dispute resolution process. process in a manner that helps avoid The preceding discussion has Further, EPA requests comment on intergovernmental disputes? attempted to identify some major issues whether EPA should address how the 5. Identifying AQRVs. What guidance, in developing an approach to this dispute resolution process relates to the if any, should EPA provide about the rulemaking. However, these are only permit proceeding and how the technical support that should preliminary ideas that do not resulting solution is implemented. accompany identification of AQRVs by necessarily exhaust all possible issues States and Tribes? and approaches regarding the PSD 3. Incentives for Amicable Dispute 6. Disseminating Information about Resolution permit review process. EPA wishes to AQRVs. What methods should EPA engage in a public discussion about the Ideally, intergovernmental permit consider to ensure that States and Tribes PSD permit review process and intends disputes could be amicably resolved with AQRVs provide adequate, timely to hold public workshops that will without recourse to EPA. EPA seeks information about their AQRVs to provide opportunity for interested public comment on incentives EPA permit applicants and permit agencies? members of the public to address the could create for governments to resolve 7. Responsibility to protect AQRV. issues raised in this notice and suggest their concerns amicably. Should non-Federal land managers have additional approaches. the same affirmative responsibility as D. Miscellaneous Changes The first of these public workshops Federal land managers to protect will be held in Phoenix, Arizona and in EPA also seeks public input on any AQRVs? Chicago, Illinois. A Federal Register clarifying, administrative changes EPA 8. EPA Resolution of notice announcing specific dates, times, should make to its existing PSD Intergovernmental Disputes. Should and locations of these workshops will regulations in light of the distinctions EPA specify the procedures, measures be published at least 30 days prior to the between Federal and non-Federal Class and techniques that might be employed workshops. If there is public interest, I areas. Comments regarding consistent in resolving intergovernmental permit additional public workshops will be use of terminology would be disputes under section 164(e) and, if so, announced in the Federal Register. appropriate. For example, the existing which of these might be appropriate? rules may generally refer to Class I areas 9. Waiver of Class I Increments. V. Additional Information where the context implies that Federal Should EPA explore in this rulemaking A. Public Docket Class I areas is the intended meaning. EPA’s discretion to waive the Class I Technical revisions may help avoid any increments for non-Federal Class I areas This rulemaking action involves confusion. in resolving permit disputes? promulgation or revision of PSD The public should also comment on 10. Dispute Resolution Procedures. regulations. Thus, the rulemaking is whether EPA should make any What rules, if any, should EPA consider subject to the procedures in section conforming regulatory changes to the to govern the manner in which EPA will 307(d) of the CAA, 42 U.S.C. Sec. Guideline on Air Quality Modeling to conduct resolution of intergovernmental 7607(d), in accordance with section clarify and improve the PSD permit permit disputes under section 164(e)? 307(d)(1)(J). The public docket for this procedures for non-Federal Class I areas. 11. Incentive for Amicable rulemaking action is A–96–53. The The Guideline prescribes the air quality Intergovernmental Dispute Resolution. docket is a file of information relied on models employed to estimate the air How can EPA create incentives for by EPA in the development of 27166 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Proposed Rules regulations. All written comments and A draft of this ANPR and associated number of small entities. 5 U.S.C. accompanying materials received in materials were reviewed by OMB prior 605(b). response to this notice will be placed in to publication. Information related to The regulatory revisions that are being the public docket. The docket is OMB’s review of this ANPR has been considered in this rulemaking initiative available for public review and copying placed in the public docket referenced would affect the PSD permit review at EPA’s Air Docket, as indicated in the at the beginning of this notice, procedures for new major stationary ADDRESSES section at the beginning of including: (1) Materials provided to sources and major modifications to this document. OMB in conjunction with OMB’s review existing major stationary sources. This regulatory initiative is also intended to B. Executive Order (EO) 12866 of this ANPR; and (2) Materials that identify substantive changes made clarify and improve the existing rules. It Section 3(f) of EO 12866 defines between the submittal of a draft ANPR is unclear at this stage of the rulemaking ‘‘significant regulatory action’’ for to OMB and this notice, and that process whether this rulemaking purposes of centralized regulatory identify the changes that were made at initiative may have a significant adverse review by the Office of Management and the suggestion or recommendation of impact on a substantial number of small Budget (OMB) to mean any regulatory OMB. entities. Nevertheless, EPA seeks public action that is likely to result in a rule comment on steps EPA can take in this that may: C. Regulatory Flexibility Act as rulemaking to facilitate public (1) Have an annual effect on the Amended by the Small Business participation by any small entities that economy of $100 million or more or Regulatory Enforcement Fairness Act of may be adversely affected and to adversely affect in a material way the 1996 mitigate any such impacts. economy, a sector of the economy, productivity, competition, jobs, the Under the RFA, 5 U.S.C. 601–612, D. Paperwork Reduction Act EPA must prepare an initial Regulatory environment, public health or safety, or EPA requests public comments on Flexibility Analyses to accompany State, local or tribal governments or steps EPA can take in this rulemaking notices of proposed rulemaking that communities; initiative to ensure that any (2) Create a serious inconsistency or assess the impact of proposed rules on informational requirements are otherwise interfere with an action taken small entities. Small entities include necessary and of practical utility, and to or planned by another agency; small businesses, small not-for-profit minimize the burden of any information (3) Materially alter the budgetary enterprises and government entities requirements. impact of entitlements, grants, user fees, with jurisdiction over populations of or loan programs or the rights and less than 50,000. However, the Dated: May 8, 1997. obligations of recipients thereof; or requirement of preparing such analyses Mary D. Nichols, (4) Raise novel legal or policy issues is inapplicable if the Administrator Assistant Administrator for Air and arising out of legal mandates, the certifies that the rule will not, if Radiation. President’s priorities, or the principles promulgated, have a significant [FR Doc. 97–12918 Filed 5–15–97; 8:45 am] set forth in this Executive Order. economic impact on a substantial BILLING CODE 6560±50±P i

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CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING MAY

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since the revision date of each title. Laws 3 CFR 437...... 23690 For additional information 523±5227 457 ...... 23675, 23680, 23685, Proclamations: 23690, 25140, 26248, 26750 Presidential Documents 6996...... 24555 800...... 26252 Executive orders and proclamations 523±5227 6997...... 24557 1126...... 26255 The United States Government Manual 523±5227 6998...... 25105 1137...... 24610 6999...... 25421 1138...... 26257 7000...... 26201 Ch. XIII ...... 24849, 25140 Other Services 7001...... 26203 Electronic and on-line services (voice) 523±4534 7002...... 26379 8 CFR Privacy Act Compilation 523±3187 Administrative Orders: 292...... 23634 TDD for the hearing impaired 523±5229 Presidential Determinations: No. 97±21 of April 24, 9 CFR 1997 ...... 23939 ELECTRONIC BULLETIN BOARD 77...... 24801 Memorandums: Free Electronic Bulletin Board service for Public Law numbers, 92...... 23635 March 27, 1997 ...... 26369 94...... 24802, 25439 Federal Register finding aids, and list of documents on public April 24, 1997 ...... 24797 inspection. 202±275±0920 160...... 25444 5 CFR 161...... 25444 FAX-ON-DEMAND 304...... 23639 530...... 25423 308...... 23639, 26211 You may access our Fax-On-Demand service. You only need a fax 531...... 25423 310...... 23639, 26211 machine and there is no charge for the service except for long 591...... 25423 327...... 23639 distance telephone charges the user may incur. The list of 1312...... 25426 381...... 23639, 26211 documents on public inspection and the daily Federal Register’s 2641...... 26915 416...... 23639, 26211 table of contents are available using this service. The document 3801...... 23941 417...... 23639 numbers are 7050-Public Inspection list and 7051-Table of Proposed Rules: Proposed Rules: Contents list. The public inspection list will be updated 1603...... 25558 3...... 24611 immediately for documents filed on an emergency basis. 1640...... 25559 NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 7 CFR 10 CFR FILE AND NOT THE ACTUAL DOCUMENT. Documents on 2...... 26219 public inspection may be viewed and copied in our office located 28...... 25799 51...... 26730 at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 29...... 24559 52...... 25800 telephone number is: 301±713±6905 226...... 23613 301 ...... 23620, 23943, 24746, 420...... 26724 24753 430...... 26140 FEDERAL REGISTER PAGES AND DATES, MAY 340...... 23628, 23945 450...... 26724 703...... 24804 23613±23938...... 1 401...... 25107 454...... 23628 1023...... 24804 23939±24324...... 2 457 ...... 23628, 25107, 26205 Proposed Rules: 24325±24558...... 5 718...... 25433 51...... 26733 24559±24796...... 6 723...... 24799 71...... 25146 24797±25106...... 7 729...... 25433 435...... 24164 25107±25420...... 8 1131...... 26735 25421±25798...... 9 1230...... 26205 11 CFR 25799±26204...... 12 1464...... 24799 Proposed Rules: 26205±26380...... 13 1493...... 24560 100...... 24367 26381±26734...... 14 1494...... 24560 104...... 24367 26735±26914...... 15 1755...... 23958, 25017 109...... 24367 110...... 24367 26915±27166...... 16 1930...... 25062 1941...... 26918 1944 ...... 25062, 25071, 26207 12 CFR 1951...... 25062 217...... 26736 1965...... 25062 229...... 26220 3403...... 26168 614...... 25831 Proposed Rules: 617...... 24562 319...... 24849, 25561 618...... 25831 321...... 24849 620...... 24808 330...... 24849 630...... 24808 401...... 23675 931...... 26921 405...... 25140 934...... 26921 416...... 23680, 26750 Proposed Rules: 425...... 23685 307...... 26431 435...... 26248 330...... 26435 ii Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Reader Aids

343...... 26994 239...... 26386 301...... 26755 17...... 23731 566...... 26449 240...... 26386 601...... 26755 36...... 24872, 24874 Ch. IX...... 25563 249...... 26386 270...... 26923 27 CFR 39 CFR 13 CFR Proposed Rules: Proposed Rules: 20...... 25136, 25515 121...... 24325, 26381 230...... 24160 9...... 24622 111 ...... 24340, 25752, 26086 Proposed Rules: 239...... 24160 28 CFR Proposed Rules: 120...... 25874 270...... 24160, 24161 111...... 25876 274...... 24160 0...... 23657 502...... 25876 14 CFR 45...... 23941 3001...... 25578 18 CFR 544...... 25098 39 ...... 23640, 23642, 24009, Proposed Rules: 40 CFR 24013, 24014, 24015, 24017, 284...... 25842 16...... 26458 52 ...... 24035, 24036, 24341, 24019, 24021, 24022, 24325, Proposed Rules: 24574, 24815, 24824, 24826, 24567, 24568, 24570, 24809, 4...... 25874 29 CFR 26393, 26395, 26396, 26399, 24810, 25832, 25833, 25834, 154...... 24853 1601...... 26933 26401, 26405, 26745, 26854 25836, 25837, 25839, 26221, 375...... 25874 4044...... 26741 60...... 24824 26223, 26381, 26737 430...... 25569 Proposed Rules: 70...... 26405 71 ...... 23643, 23644, 23646, 19 CFR 4231...... 23700 81 ...... 24036, 24038, 24552, 23647, 34648, 23649, 23651, 24826, 26230 23652, 23653, 23654, 23655, 122...... 24814 30 CFR 87...... 25356 23656, 24024, 25110, 25112, Proposed Rules: Proposed Rules: 148...... 26998 25445, 25448, 26224, 26383, 111...... 24374 251...... 23705 180 ...... 24040, 24045, 24835, 26739 163...... 24374 253...... 24375 24839, 25518, 25524, 26407, 91...... 268901 351...... 25874 914...... 25875 26412, 26941, 26946, 26949, 95...... 25448 20 CFR 26954, 26960 97...... 24025, 25110 31 CFR 429...... 24328 244...... 24051 187...... 24286, 24552 1...... 26934 Proposed Rules: 261...... 26998 310...... 25840 351...... 24280 404...... 26997 268...... 26998 374...... 25840 356...... 25113, 25224 416...... 26997 271...... 26998 Proposed Rules: 718...... 27000 Proposed Rules: 372...... 23834 Ch. I ...... 26894 207...... 25572 722...... 27000 Proposed Rules: 11...... 24288 725...... 27000 356...... 24375 51...... 27158 21...... 24288 726...... 27000 52 ...... 24060, 24380, 24632, 25...... 24288, 26453 32 CFR 727...... 27000 24886, 24887, 26459, 26460, 39 ...... 23695, 23697, 24851, 199...... 26939 26463, 27158 25130, 25563, 25565, 25566, 310...... 26389 21 CFR 60 ...... 24212, 24887, 25877 26258, 26261, 26456 316...... 26389 172...... 26225 63 ...... 24212, 25370, 25877 71 ...... 23699, 25568, 26263, 317...... 26389 812...... 26228 80...... 24776, 25879 26264, 26265, 26457 706 ...... 23658, 26742, 26743 Proposed Rules: 81...... 24065, 26266 93...... 26902 Proposed Rules: Ch. I ...... 24619 87...... 25368 285...... 25875 15 CFR 178...... 25475 148...... 26041 511...... 25212, 25153 33 CFR 180 ...... 24065, 27002, 27132, 730...... 25451 514...... 25152 100...... 26229, 26744 27142, 27149 732...... 25451 558...... 25477 228...... 26267 734...... 25451 117...... 24338, 25514 898...... 25477 154...... 25115 260...... 24212, 25877 736...... 25451 1308...... 24620 261 ...... 24212, 25877, 26041 738...... 25451 155...... 25115 156...... 25115 264...... 24212, 25877 740...... 25451 22 CFR 265...... 24212, 25877 742...... 25451 165 ...... 23659, 24339, 26390, 41 ...... 24331, 24332, 24334 26392 266...... 24212 744...... 25451, 26922 268...... 26041 750...... 25451 24 CFR 325...... 26229 334...... 24034 270...... 24212, 25877 752...... 25451 5...... 24334, 27124 Proposed Rules: 271 ...... 24212, 25877, 26041 754...... 25451 573...... 24573 300...... 26463 756...... 25451 96...... 23705 941...... 27124 100...... 24377 372...... 24887 758...... 25451 950...... 24334, 27124 762...... 25451 110...... 24378 41 CFR 079...... 27124 167...... 25576 764...... 25451 3280...... 24337 302±1...... 26374 768...... 25451 3282...... 24337 34 CFR 302±6...... 26374 770...... 25451 Proposed Rules: 668...... 27128 Proposed Rules: 772...... 25451 960...... 25728 685...... 25515 101±47...... 24383 950...... 24812 966...... 25728 Proposed Rules: 42 CFR 16 CFR 3500...... 25740 1100...... 24860 405...... 25844 305...... 26383 25 CFR 36 CFR 417...... 25844 Proposed Rules: Proposed Rules: Proposed Rules: 473...... 25844 1015...... 24614 181...... 27000 7...... 24624 493...... 25855 17 CFR 26 CFR 37 CFR 43 CFR 1 ...... 24026, 25470, 26384 1 ...... 23657, 25498, 25502, Proposed Rules: 3800...... 26966 5...... 26384 26740 1...... 24865 44 CFR 15...... 24026 301...... 25498, 26740 2...... 24865 16...... 24026 601...... 26740 64...... 24343 17...... 24026 602...... 25502 38 CFR 67...... 25858 31...... 26384 Proposed Rules: Proposed Rules: Proposed Rules: 230...... 24572, 26386 1...... 26755 3...... 23724 62...... 23736 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Reader Aids iii

67...... 25880 1...... 24576, 26235 5...... 26640 172...... 24690 2 ...... 24576, 26239, 26684 6...... 26640 173...... 24690 45 CFR 15...... 26239 7...... 26640 175...... 24690 1626...... 24054, 24159 64...... 24583, 24585 9...... 26640 176...... 24690 1642...... 25862 68...... 24587 11...... 26640 178...... 24690 73 ...... 24055, 24842, 24843, 12...... 25786, 26640 46 CFR 190...... 24055 24844, 25557, 26416, 26417, 13...... 26640 571...... 25425 13...... 25115 14...... 25786, 26640 26418, 26419, 26684, 26966 Proposed Rules: 15...... 25115 74...... 26684 15...... 25786, 26640 571...... 26466 30...... 25115 76 ...... 25865, 26235, 26245 16...... 26640 Ch. X...... 24896 35...... 25115 101...... 24576 17...... 26640 1039...... 27002, 27003 98...... 25115 19...... 25786, 26640 Proposed Rules: 1121...... 23742 105...... 25115 Ch. I ...... 25157 24...... 26640 1150...... 23742 108...... 23894 1...... 26465 25...... 26640 110...... 23894 2...... 24383 27...... 26640 111...... 23894 25...... 24073 28...... 26640 50 CFR 112...... 23894 73...... 24896, 26466 31...... 26640 91...... 24844 113...... 23894 32...... 23740, 26640 222...... 24345 159...... 25525 48 CFR 33...... 25786, 26640 227...... 24345, 24588 160...... 25525 1201...... 26419 35...... 26640 600...... 23667 161...... 23894 1202...... 26419 36...... 26640 622...... 23671 169...... 25525 1203...... 26419 42...... 26640 199...... 25525 1211...... 26419 43...... 26640 630...... 26427 Proposed Rules: 1214...... 26419 44...... 26640 648...... 25138 2...... 23705 1237...... 26419 45...... 26640 660 ...... 24355, 24845, 25872 31...... 23705 1246...... 26419 49...... 26640 670...... 24058 71...... 23705 1252...... 26419 50...... 26640 674...... 26428 91...... 23705 1253...... 26419 52 ...... 23740, 25786, 26640 678...... 26428 107...... 23705 1831...... 24345 53...... 25786, 26640 679 ...... 24058, 25138, 26246, 115...... 23705 6103...... 25865 252...... 23741 26428, 26429, 26749, 26854, 126...... 23705 6104...... 25868, 25870 26992 175...... 23705 6105...... 25870 49 CFR Proposed Rules: 176...... 23705 Proposed Rules: 1...... 23661 17 ...... 24387, 24388, 24632, 189...... 23705 1...... 26640 8...... 23661 26757 2...... 26640 10...... 23666 600...... 23744, 24897 47 CFR 3...... 26640 107...... 24055 622...... 25158 0...... 24054 4...... 26640 171...... 24690 648...... 24073 iv Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Reader Aids

REMINDERS Fuels and fuel additivesÐ Historically black colleges Performance-based The items in this list were Atypical additives and and universities/minority payments; published 3-17- editorially compiled as an aid biodiesel fuels, specified institutions; collection of 97 to Federal Register users. deadlines extension; award data; published 3- Prompt payment; published Inclusion or exclusion from and reformulated 17-97 3-17-97 this list has no legal gasoline complex Independent research and PERSONNEL MANAGEMENT significance. model, survey precision development/bid and OFFICE requirements proposal costs in Excepted service: modification; published cooperative arrangements; RULES GOING INTO 3-17-97 published 3-17-97 Schedule A authority for EFFECT MAY 16, 1997 positions in temporary Motor vehicle registration Management oversight of organizations; published and manufacturer service contracting; 4-16-97 AGRICULTURE testing and applicability published 3-17-97 TRANSPORTATION DEPARTMENT to blenders of deposit Performance-based DEPARTMENT Farm Service Agency control gasoline payments; published 3-17- Program regulations: additives; published 3- 97 Federal Aviation Administration Boll Weevil eradication loan 17-97 Prompt payment; published program; implementation; Air quality implementation 3-17-97 Airworthiness directives: plans; approval and Avions Pierre Robin; published 5-16-97 INTERIOR DEPARTMENT promulgation; various published 3-13-97 COMMERCE DEPARTMENT Land Management Bureau States: Raytheon; published 3-17-97 Export Administration Minerals management: Bureau Arizona; published 3-17-97 TREASURY DEPARTMENT Mining claims under general Pesticides; tolerances in food, Internal Revenue Service Export administration mining laws; surface regulations: animal feeds, and raw Income taxes: agricultural commodities: management License requirement for Correction; published 5- Private activity bonds; exports or reexports; Carbon disulfide; published 16-97 definition; published 1-16- entity list; published 5-16- 5-16-97 97 97 Clopyralid; published 5-16- NATIONAL AERONAUTICS AND SPACE TREASURY DEPARTMENT DEFENSE DEPARTMENT 97 ADMINISTRATION Privacy Act; implementation; Federal Acquisition Regulation Emamectin benzoate; published 5-16-97¶ (FAR): published 5-16-97 Acquisition regulations: Propamocarb hydrochloride; Contract cost principles and Buy American Act; RULES GOING INTO construction (Grimberg published 5-16-97 procedures; independent decision); published 3-17- Pyridaben; published 5-16- research and EFFECT MAY 18, 1997 97 97 development; class deviation deleted; TRANSPORTATION Contractors' purchasing FEDERAL HOUSING published 5-5-97 DEPARTMENT systems reviews; FINANCE BOARD Federal Acquisition Regulation Surface Transportation published 3-17-97 Federal home loan bank (FAR): Board Contracts, fixed-price; system: performance incentives; Buy American Act; Tariffs and schedules: Bank or trust company published 3-17-97 construction (Grimberg Transportation of property deposits; definition decision); published 3-17- Electronic contracting; modificationÐ by or with water carrier in published 3-17-97 97 noncontiguous domestic Foreign banks' U.S. Contractors' purchasing trade; publication, posting, Foreign selling costs branches and agencies allowability; published 3- systems reviews; and filing; published 4-18- investment deposits published 3-17-97 97 17-97 inclusion; published 5- Contracts, fixed-price; General Accounting Office 16-97 protests; hourly cap on performance incentives; GENERAL SERVICES COMMENTS DUE NEXT attorneys' fees; published published 3-17-97 WEEK 3-17-97 ADMINISTRATION Electronic contracting; Gratuities; published 3-17-97 Federal Acquisition Regulation published 3-17-97 (FAR): AGRICULTURE Historically black colleges Foreign selling costs DEPARTMENT Buy American Act; allowability; published 3- and universities/minority Agricultural Marketing construction (Grimberg 17-97 institutions; collection of Service award data; published 3- decision); published 3-17- General Accounting Office Onions grown inÐ 17-97 97 protests; hourly cap on Independent research and Contractors' purchasing attorneys' fees; published Texas; comments due by 5- development/bid and systems reviews; 3-17-97 23-97; published 4-23-97 proposal costs in published 3-17-97 Gratuities; published 3-17-97 AGRICULTURE DEPARTMENT cooperative arrangements; Contracts, fixed-price; Historically black colleges published 3-17-97 performance incentives; and universities/minority Federal Crop Insurance Management oversight of published 3-17-97 institutions; collection of Corporation service contracting; Electronic contracting; award data; published 3- Crop insurance regulations: published 3-17-97 published 3-17-97 17-97 Macadamia nuts; comments Performance-based Foreign selling costs Independent research and due by 5-19-97; published payments; published 3-17- allowability; published 3- development/bid and 4-18-97 97 17-97 proposal costs in Macadamia trees; comments Prompt payment; published General Accounting Office cooperative arrangements; due by 5-19-97; published 3-17-97 protests; hourly cap on published 3-17-97 4-18-97 ENVIRONMENTAL attorneys' fees; published Management oversight of Potatoes; comments due by PROTECTION AGENCY 3-17-97 service contracting; 5-23-97; published 4-23- Air programs: Gratuities; published 3-17-97 published 3-17-97 97 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Reader Aids v

AGRICULTURE Locomotives and locomotive Virginia; comments due by PENSION BENEFIT DEPARTMENT engines; reduction of 5-19-97; published 4-3-97 GUARANTY CORPORATION Forest Service nitrogen oxides emissions, Wyoming and Nebraska; Single-employer plans: National Forest System timber; oxides, etc.; standards; comments due by 5-19- Allocation of assetsÐ disposal and sale: comments due by 5-19- 97; published 4-3-97 97; published 3-11-97 Mortality tables; comments Small business timber sales HEALTH AND HUMAN due by 5-19-97; Air quality implementation set-aside program; shares SERVICES DEPARTMENT published 3-19-97 plans; approval and recomputation; appeal Food and Drug promulgation; various PERSONNEL MANAGEMENT procedures; comments Administration due by 5-23-97; published States: OFFICE Electronic identification/ 3-24-97 California; comments due by Allowances and differentials: signatures in place of 5-19-97; published 4-17- Cost-of-living allowances AGRICULTURE handwritten signatures; 97 (nonforeign areas); DEPARTMENT comments due by 5-19-97; comments due by 5-19- Farm Service Agency District of Columbia et al.; published 3-20-97 comments due by 5-23- 97; published 3-20-97 Farm marketing quotas, Food additives: acreage allotments, and 97; published 4-23-97 TRANSPORTATION Adjuvants, production aids, production arrangements: Indiana; comments due by DEPARTMENT and sanitizersÐ Tobacco; comments due by 5-19-97; published 4-18- Coast Guard C.I. Pigment Yellow 191; 5-20-97; published 3-21- 97 Boating safety: Minnesota; comments due expanded safe use; 97 Recreational boats; hull by 5-23-97; published 4- comments due by 5-21- AGRICULTURE identification numbers; 23-97 97; published 4-21-97 DEPARTMENT comments due by 5-22- INTERIOR DEPARTMENT Rural Utilities Service North Dakota; comments 97; published 2-21-97 due by 5-21-97; published Indian Affairs Bureau Electric loans: Regattas and marine parades: 4-21-97 Education: Pre-loan policies and First Coast Guard District Pennsylvania; comments proceduresÐ Higher education grant fireworks displays; due by 5-19-97; published Temporary loan program; clarification; comments due by 5-21- 4-18-97 processing procedures; comments due by 5-20- 97; published 4-21-97 comments due by 5-22- Pesticides; emergency 97; published 2-19-97 exemptions, etc.: TRANSPORTATION 97; published 2-21-97 JUSTICE DEPARTMENT DEPARTMENT ARCHITECTURAL AND Benomyl; comments due by Immigration and 5-22-97; published 5-7-97 Federal Aviation TRANSPORTATION Naturalization Service Administration BARRIERS COMPLIANCE Pesticides; tolerances in food, Immigration: BOARD animal feeds, and raw Air traffic operating and flight agricultural commodities: Educational requirements for rules: Americans with Disabilities naturalizationÐ Act; implementation: Avermectin B1 and delta- Airport security areas, Exceptions due to unescorted access Outdoor Developed Areas 8,9-isomer; comments due physical or privileges; employment Accessibility Guidelines by 5-23-97; published 3- 24-97 developmental disability history, verification, and Regulatory Negotiation or mental impairment; Bromoxynil; comments due criminal history records CommitteeÐ comments due by 5-19- by 5-19-97; published 5-2- check; comments due by Intent to establish; 97; published 3-19-97 5-19-97; published 3-19- comments due by 5-19- 97 LABOR DEPARTMENT 97 97; published 4-18-97 Tebufenozide; comments Employment Standards Airworthiness directives: COMMERCE DEPARTMENT due by 5-19-97; published Administration de Havilland; comments due National Oceanic and 3-20-97 by 5-23-97; published 4- Atmospheric Administration FEDERAL Federal Coal Mine Health and Safety Act of 1969, as 15-97 Fishery conservation and COMMUNICATIONS amended: management: COMMISSION Airbus Industrie; comments due by 5-19-97; published Magnuson Act provisions; Administrative practice and Black Lung Benefits ActÐ 4-9-97 comments due by 5-23- procedure: Individual claims by 97; published 4-23-97 Electronic filing of former coal miners and AlliedSignal Inc.; comments West Coast States and documents in rulemaking dependents processing due by 5-19-97; published Western Pacific proceedings; comments and adjudication; 3-18-97 fisheriesÐ due by 5-21-97; published regulations clarification Boeing; comments due by and simplification; Pacific Coast groundfish; 4-21-97 5-22-97; published 4-14- comments due by 5-23- comments due by 5-22- Common carrier services: 97 97; published 2-24-97 97; published 5-7-97 Toll free service access Bombardier; comments due Salmon off coasts of codes; comments due by LABOR DEPARTMENT by 5-23-97; published 4- Washington, Oregon, 5-22-97; published 4-25- Pension and Welfare 15-97 and California; 97 Benefits Administration Dornier; comments due by comments due by 5-19- Radio stations; table of Employee Retirement Income 5-19-97; published 4-9-97 97; published 4-3-97 assignments: Security Act: Pratt & Whitney; comments ENERGY DEPARTMENT Louisiana; comments due by Civil monetary penalties; due by 5-19-97; published Occupational radiation 5-19-97; published 4-3-97 inflation adjustment; 3-19-97 protection: Minnesota; comments due comments due by 5-19- Saab; comments due by 5- Guides and technical by 5-19-97; published 4-3- 97; published 4-18-97 19-97; published 4-9-97 standards; availability; 97 LEGAL SERVICES Class E airspace; comments comments due by 5-23- Mississippi; comments due CORPORATION due by 5-22-97; published 97; published 4-24-97 by 5-19-97; published 4-3- Aliens; legal assistance 3-11-97 ENVIRONMENTAL 97 restrictions; comments due Class E airspace; comments PROTECTION AGENCY Texas; comments due by 5- by 5-21-97; published 4-21- due by 5-19-97; published Air programs: 19-97; published 4-3-97 97 4-8-97 vi Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Reader Aids

Commercial launch vehicles; Mendocino Ridge, CA; available online at http:// H.R. 1001/P.L. 105±13 licensing regulations; comments due by 5-22- www.nara.gov/nara/fedreg/ To extend the term of comments due by 5-19-97; 97; published 4-7-97 fedreg.html. appointment of certain published 3-19-97 TREASURY DEPARTMENT members of the Prospective TRANSPORTATION Internal Revenue Service The text of laws is not Payment Assessment DEPARTMENT Estate and gift taxes: published in the Federal Commission and the Physician Payment Review Commission. National Highway Traffic Marital deduction; cross Register but may be ordered (May 14, 1997; 111 Stat. 31) Safety Administration reference; comments due in ``slip law'' (individual Motor vehicle safety by 5-19-97; published 2- pamphlet) form from the S. 305/P.L. 105±14 18-97 standards: Superintendent of Documents, To authorize the President to Child restraint systemsÐ U.S. Government Printing award a gold medal on behalf Tether anchorages and LIST OF PUBLIC LAWS Office, Washington, DC 20402 of the Congress to Francis anchorage system; (phone, 202±512±2470). The Albert ``Frank'' Sinatra in recognition of his outstanding comments due by 5-21- This is a continuing list of text will also be made and enduring contributions 97; published 2-20-97 public bills from the current available on the Internet from session of Congress which through his entertainment TREASURY DEPARTMENT GPO Access at http:// have become Federal laws. It career and humanitarian www.access.gpo.gov/su docs/. Alcohol, Tobacco and may be used in conjunction Ð activities, and for other Firearms Bureau with ``P L U S'' (Public Laws Some laws may not yet be purposes. (May 14, 1997; 111 Alcohol; viticultural area Update Service) on 202±523± available. Stat. 32) designations: 6641. This list is also Last List May 2, 1997 Federal Register / Vol. 62, No. 95 / Friday, May 16, 1997 / Reader Aids vii

FEDERAL REGISTER WORKSHOP THE FEDERAL REGISTER: WHAT IT IS AND HOW TO USE IT FOR: Any person who uses the Federal Register and Code of Federal Regulations. WHO: Sponsored by the Office of the Federal Register. WHAT: Free public briefings (approximately 3 hours) to present: 1. The regulatory process, with a focus on the Federal Register system and the public’s role in the development of regulations. 2. The relationship between the Federal Register and Code of Federal Regulations. 3. The important elements of typical Federal Register documents. 4. An introduction to the finding aids of the FR/CFR system. WHY: To provide the public with access to information necessary to research Federal agency regulations which directly affect them. There will be no discussion of specific agency regulations.

WASHINGTON, DC WHEN: June 17, 1997 at 9:00 am WHERE: Office of the Federal Register Conference Room 800 North Capitol Street, NW. Washington, DC (3 blocks north of Union Station Metro) RESERVATIONS: 202–523–4538