Pages 43067±43286 Vol. 63 8±12±98 No. 155 federal register August 12,1998 Wednesday GPO Access services andaccessmethods,seepageIIorcontactthe For additionalinformationon http://www.access.gpo.gov/nara/index.html of theU.S.GovernmentPrintingOfficeat: Register publicationsisavailableon Register, theCodeofFederalRegulations Free onlineaccesstotheofficialeditionsof Website at:http://www.plainlanguage.gov National PartnershipforReinventingGovernment(NPR) language, read``WritingUser-FriendlyDocuments''onthe For morein-depthguidanceontheelementsofplain address is:http://www.nara.gov/fedreg in GovernmentWriting(63FR31883,June10,1998).Our President's MemorandumofJune1,1998ÐPlainLanguage Tools onitsWebsitetohelpyoucomplywiththe The OfficeoftheFederalRegisteroffersPlainLanguage ★ ★ Plain LanguageToolsAreNowAvailable Email: [email protected] Phone: toll-free:1-888-293-6498 Attention: FederalAgencies User SupportTeamvia: Now AvailableOnlinevia GPO Access GPO Access GPO Access, and otherFederal products, Federal a service 1 II Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998

The FEDERAL REGISTER is published daily, Monday through SUBSCRIPTIONS AND COPIES Friday, except official holidays, by the Office of the Federal Register, National Archives and Records Administration, PUBLIC Washington, DC 20408, under the Federal Register Act (44 U.S.C. Subscriptions: Ch. 15) and the regulations of the Administrative Committee of Paper or fiche 202–512–1800 the Federal Register (1 CFR Ch. I). The Superintendent of Documents, U.S. Government Printing Office, Washington, DC Assistance with public subscriptions 512–1806 20402 is the exclusive distributor of the official edition. General online information 202–512–1530; 1–888–293–6498 The Federal Register provides a uniform system for making Single copies/back copies: available to the public regulations and legal notices issued by Paper or fiche 512–1800 Federal agencies. These include Presidential proclamations and Assistance with public single copies 512–1803 Executive Orders, Federal agency documents having general applicability and legal effect, documents required to be published FEDERAL AGENCIES by act of Congress, and other Federal agency documents of public Subscriptions: interest. Paper or fiche 523–5243 Documents are on file for public inspection in the Office of the Assistance with Federal agency subscriptions 523–5243 Federal Register the day before they are published, unless the issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see http://www.nara.gov/ fedreg. The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication established under the Federal Register Act. Under 44 U.S.C. 1507, the contents of the Federal Register shall be judicially noticed. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge as one of the databases on GPO Access, a service of the U.S. Government Printing Office. The online edition of the Federal Register is issued under the authority of the Administrative Committee of the Federal Register as the official legal equivalent of the paper and microfiche editions (44 U.S.C. 4101 and 1 CFR 5.10). It is updated by 6 a.m. each day the Federal Register is published and it includes both text and graphics from Volume 59, Number 1 (January 2, 1994) forward. GPO Access users can choose to retrieve online Federal Register documents as TEXT (ASCII text, graphics omitted), PDF (Adobe Portable Document Format, including full text and all graphics), or SUMMARY (abbreviated text) files. Users should carefully check retrieved material to ensure that documents were properly downloaded. On the World Wide Web, connect to the Federal Register at http:/ /www.access.gpo.gov/nara. Those without World Wide Web access can also connect with a local WAIS client, by Telnet to swais.access.gpo.gov, or by dialing (202) 512-1661 with a computer and modem. When using Telnet or modem, type swais, then log in as guest with no password. For more information about GPO Access, contact the GPO Access User Support Team by E-mail at [email protected]; by fax at (202) 512–1262; or call (202) 512–1530 or 1–888–293–6498 (toll free) between 7 a.m. and 5 p.m. Eastern time, Monday–Friday, except Federal holidays. The annual subscription price for the Federal Register paper edition is $555, or $607 for a combined Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $220. Six month subscriptions are available for one-half the annual rate. The charge for individual copies in paper form is $8.00 for each issue, or $8.00 for each group of pages as actually bound; or $1.50 for each issue in microfiche form. All prices include regular domestic postage and handling. International customers please add 25% for foreign handling. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard or Discover. Mail to: New Orders, Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250–7954. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 63 FR 12345.

.

2 III

Contents Federal Register Vol. 63, No. 155

Wednesday, August 12, 1998

Agricultural Marketing Service NOTICES PROPOSED RULES Agency information collection activities: Milk marketing orders: Submission for OMB review; comment request, 43143 Southwest Plains, 43125–43126 Meetings: Environmental Management Site-Specific Advisory Agriculture Department Board— See Agricultural Marketing Service Los Alamos National Laboratory, 43143 See Animal and Plant Health Inspection Service Environmental Protection Agency See Rural Telephone Bank RULES Air programs; approval and promulgation; State plans for Animal and Plant Health Inspection Service designated facilities and pollutants: PROPOSED RULES Minnesota, 43080–43083 Plant-related quarantine, foreign: Pesticides; tolerances in food, animal feeds, and raw Grapefruit, lemons, and oranges from Argentina, 43117– agricultural commodities: 43125 Potassium dihydrogen phosphate, 43083–43085 Zucchini juice added to buffalo gourd root powder, Architectural and Transportation Barriers Compliance 43085–43088 Board PROPOSED RULES NOTICES Air programs; approval and promulgation; State plans for Committees; establishment, renewal, termination, etc.: designated facilities and pollutants: Passenger Vessel Access Advisory Committee; meeting, Minnesota, 43127 43136–43137 NOTICES Meetings: Centers for Disease Control and Prevention Science Advisory Board, 43175 NOTICES Pesticide programs: Agency information collection activities: Organophosphates; preliminary risk assessments, 43175– Proposed collection; comment request, 43184–43186 43177 Pesticide registration, cancellation, etc.: Children and Families Administration Dominion BioSciences, Inc., 43177–43178 NOTICES Agency information collection activities: Executive Office of the President Proposed collection; comment request, 43186 See Trade Representative, Office of United States Export Administration Bureau Coast Guard NOTICES RULES Committees; establishment, renewal, termination, etc.: Drawbridge operations: Technical Advisory Committees, 43137 Louisiana, 43080 PROPOSED RULES Federal Aviation Administration Drawbridge operations: RULES Massachusetts, 43126–43127 Airworthiness directives: Alexander Schleicher Segelflugzeugbau, 43070–43071 Commerce Department Glaser-Dirks Flugzeugbau GmbH, 43072–43073 See Export Administration Bureau Airworthiness standards: See International Trade Administration Rotorcraft; normal and transport category— See National Institute of Standards and Technology Miscellaneous amendments; harmonization, 43281– See National Oceanic and Atmospheric Administration 43285 See Patent and Trademark Office Class E airspace, 43073–43074 NOTICES Defense Department Airport rates and charges; policy statement, 43228–43230 See Navy Department Passenger facility charges; applications, etc.: PROPOSED RULES Chicago O’Hare International Airport, IL, et al., 43230 Federal Acquisition Regulation (FAR): Business class airfare, 43239–43240 Federal Communications Commission Recruitment costs principle, 43238–43239 RULES Taxes associated with divested segments; withdrawn, Common carrier services: 43127–43128 Schools and libraries and rural health care universal Value engineering change proposals, 43235–43238 support mechanism; funding year change from calendar year cycle to fiscal year cycle, etc., 43088– Energy Department 43098 See Federal Energy Regulatory Commission Radio stations; table of assignments: See Western Area Power Administration New York, 43098–43099 IV Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Contents

NOTICES Recruitment costs principle, 43238–43239 Advanced telecommunications capability; comment Taxes associated with divested segments; withdrawn, request, 43178–43179 43127–43128 Value engineering change proposals, 43235–43238 Federal Energy Regulatory Commission RULES Government Ethics Office Natural gas companies (Natural Gas Act): RULES Interstate natural gas pipeline marketing affiliates; Government ethics: identification on Internet, 43075–43079 Statutory honorarium bar provisions and supplemental NOTICES reporting requirements removed and other Electric rate and corporate regulation filings: conforming technical amendments, 43067–43069 Enron Power Marketing Inc. et al., 43146–43149 PEC Energy Marketing, Inc., et al.; correction, 43234 Health and Human Services Department Western Area Power Administration et al., 43149–43158 See Centers for Disease Control and Prevention Hydroelectric applications, 43158 See Children and Families Administration Applications, hearings, determinations, etc.: See Health Care Financing Administration ANR Storage Co., 43144 PROPOSED RULES Blue Lake Gas Storage Co., 43144 Administrative requirements: Colorado Interstate Gas Co., 43144 Security and electronic signature standards, 43241–43280 Kentucky West Virginia Gas Co., L.L.C., 43144–43145 NOTICES Koch Gateway Pipeline Co., 43145 Scientific misconduct findings; administrative actions: National Fuel Gas Supply Corp., 43145 Pender, Benjamin S., 43183–43184 Nora Transmission Co.; correction, 43144 Northwest Pipeline Corp., 43145–43146 Health Care Financing Administration Questar Pipeline Co., 43146 NOTICES Texas Gas Transmission Corp., 43146 Privacy Act: Williams Gas Pipelines Central, Inc., 43146 Systems of records, 43187–43190

Federal Highway Administration Housing and Urban Development Department PROPOSED RULES NOTICES Motor carrier safety standards: Agency information collection activities: Household goods transportation; consumer protection Submission for OMB review; comment request, 43190 regulations, 43128–43129 Immigration and Naturalization Service Federal Maritime Commission NOTICES NOTICES Meetings: Freight forwarder licenses: Immigration and Naturalization Service User Fee CrossBar, Inc., et al., 43179–43180 Advisory Committee, 43195–43196

Federal Reserve System Interior Department NOTICES See Fish and Wildlife Service Banks and bank holding companies: See Land Management Bureau Formations, acquisitions, and mergers, 43180 See Minerals Management Service See National Park Service Federal Trade Commission RULES Internal Revenue Service Supplemental standards of ethical conduct for agency NOTICES employees, 43069–43070 Agency information collection activities: NOTICES Proposed collection; comment request, 43231–43232 Prohibited trade practices: Committees; establishment, renewal, termination, etc.: Allied Domecq Spirits & Wine Americas, Inc., et al., IRS Citizen Advocacy Panels, 43232–43233 43180–43181 Tax counseling program for elderly; application packages; Beck’s North America, Inc., 43181–43182 availability, 43233 Fair Allocation System, Inc., 43182–43183 International Trade Administration Fish and Wildlife Service NOTICES RULES Antidumping: Endangered and threatened species: Industrial belts and components, cured or uncured, Coastal dunes milk-vetch, etc. (five plants from Monterey from— County, CA), 43100–43116 Japan, 43139 PROPOSED RULES Welded carbon steel pipes and tubes from— Endangered and threatened species: Thailand, 43139–43140 Black legless lizard; withdrawn, 43129–43135 Antidumping and countervailing duties: New steel rail, except light rail, from— General Services Administration Canada, 43137–43139 PROPOSED RULES Countervailing duties: Federal Acquisition Regulation (FAR): Stainless steel sheet and strip in coils from— Business class airfare, 43239–43240 France, Italy, and Korea, 43140 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Contents V

International Trade Commission NOTICES NOTICES Meetings: Import investigations: Gulf of Mexico Fishery Management Council, 43141 Electrolytic manganese dioxide from— Greece and Japan, 43192–43193 National Park Service Products covered by WTO agreement on agriculture; NOTICES economic trends and barriers to trade, 43193–43194 Environmental statements; availability, etc.: Oregon, California, Mormon Pioneer, and Pony Express Justice Department National Historic Trails, 43192 See Immigration and Naturalization Service See Juvenile Justice and Delinquency Prevention Office National Transportation Safety Board NOTICES NOTICES Agency information collection activities: Meetings: Submission for OMB review; comment request, 43194– Bus crashworthiness; hearing, 43197–43198 43195 Meetings: Navy Department International Competition Policy Advisory Committee, NOTICES 43195 Inventions, Government-owned; availability for licensing, 43142 Juvenile Justice and Delinquency Prevention Office Patent licenses; non-exclusive, exclusive, or partially NOTICES exclusive: Meetings: Dow-United Technologies Composite Products, Inc., Coordinating Council, 43196 43142–43143 Land Management Bureau Nuclear Regulatory Commission NOTICES NOTICES Withdrawal and reservation of lands: Meetings; Sunshine Act, 43199–43200 Nevada, 43190–43191 Operating licenses, amendments; no significant hazards considerations; biweekly notices, 43200–43220 Minerals Management Service Applications, hearings, determinations, etc.: NOTICES Pathfinder Mines Corp., 43198 Environmental statements; availability, etc.: Virginia Electric & Power Co., 43198–43199 Gulf of Mexico OCS— Central Planning Area; nitrogen oxides emissions Office of United States Trade Representative reduction, 43191–43192 See Trade Representative, Office of United States National Aeronautics and Space Administration Patent and Trademark Office RULES NOTICES Acquisition regulations: Agency information collection activities: Miscellaneous amendments, 43099–43100 Proposed collection; comment request, 43141–43142 PROPOSED RULES Federal Acquisition Regulation (FAR): Public Health Service Business class airfare, 43239–43240 See Centers for Disease Control and Prevention Recruitment costs principle, 43238–43239 Taxes associated with divested segments; withdrawn, Rural Telephone Bank 43127–43128 NOTICES Value engineering change proposals, 43235–43238 Meetings; Sunshine Act, 43136 National Archives and Records Administration Securities and Exchange Commission NOTICES NOTICES Agency records schedules; availability, 43196–43197 Applications, hearings, determinations, etc.: CIBC Oppenheimer Corp., 43220–43223 National Highway Traffic Safety Administration Morgan Stanley, Dean Witter, Discover & Co., et al., NOTICES 43223–43226 Motor vehicle safety standards; exemption petitions, etc.: Red River Manufacturing, Inc., 43230–43231 Tennessee Valley Authority NOTICES National Institute of Standards and Technology Environmental statements; notice of intent: NOTICES Electric generation peaking capacity addition, 43226– Meetings: 43227 Information technology security; common criteria evaluation and validation scheme; development and Trade Representative, Office of United States implementation; workshop, 43140–43141 NOTICES Intellectual property rights protection, countries denying; National Oceanic and Atmospheric Administration policies and practices: RULES Paraguay, 43227–43228 Fishery conservation and management: Atlantic highly migratory species— Transportation Department Atlantic bluefin tuna, 43116 See Coast Guard VI Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Contents

See Federal Aviation Administration Separate Parts In This Issue See Federal Highway Administration See National Highway Traffic Safety Administration Part II NOTICES Department of Defense, General Services Administration, Airport rates and charges; policy statement, 43228–43230 National Aeronautics and Space Administration, Aviation proceedings: 43235–43240 Agreements filed; weekly receipts, 43230 Part III Department of Health and Human Services, 43241–43280 Treasury Department See Internal Revenue Service Part IV Department of Transportation, Federal Aviation Administration, 43281–43285 Western Area Power Administration NOTICES Power rate adjustments: Reader Aids Pick-Sloan Missouri Basin Program, Eastern Division, Consult the Reader Aids section at the end of this issue for 43158–43175 phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Contents VII

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 2634...... 43067 2636...... 43067 5701...... 43069 7 CFR Proposed Rules: 300...... 43117 319...... 43117 1106...... 43125 14 CFR 27...... 43282 29...... 43282 39 (2 documents) ...... 43070, 43072 71 (2 documents) ...... 43073, 43071 18 CFR 161...... 43075 33 CFR 117...... 43080 Proposed Rules: 117...... 43126 40 CFR 62...... 43080 180 (2 documents) ...... 43080, 43085 Proposed Rules: 62...... 43127 45 CFR Proposed Rules: 142...... 43242 47 CFR 54...... 43088 69...... 43088 73...... 43098 48 CFR 1805...... 43099 1822...... 43099 1844...... 43099 Proposed Rules: 31 (3 documents) ...... 43127, 43238, 43239 48...... 43236 52...... 43236 49 CFR Proposed Rules: 375...... 43128 377...... 43128 50 CFR 17...... 43100 285...... 43116 Proposed Rules: 17...... 43129 43067

Rules and Regulations Federal Register Vol. 63, No. 155

Wednesday, August 12, 1998

This section of the FEDERAL REGISTER ADDRESSES: Office of Government by OGE, most recently indefinitely at 57 contains regulatory documents having general Ethics, Suite 500, 1201 New York FR 5369 (February 14, 1992), pending applicability and legal effect, most of which Avenue, NW., Washington, DC 20005– development of a reporting form. are keyed to and codified in the Code of 3917, Attn.: Mr. G. Sid Smith. A copy Subsequently, because of legal Federal Regulations, which is published under of the OGE Memorandum noted in the 50 titles pursuant to 44 U.S.C. 1510. uncertainties about the related portion ‘‘Supplementary Information’’ section of the Ethics Reform Act of 1989 which The Code of Federal Regulations is sold by below may be obtained from OGE’s Web had banned receipt of honoraria, as well the Superintendent of Documents. Prices of site on the Internet at http:// as overall policy issues about how to new books are listed in the first FEDERAL www.usoge.gov, or by contacting Mr. implement the reporting requirement REGISTER issue of each week. Smith. itself, this special reporting requirement FOR FURTHER INFORMATION CONTACT: G. remained inactive. With the Sid Smith, Senior Associate General determination by the Department of OFFICE OF GOVERNMENT ETHICS Counsel, Office of Government Ethics, Justice that the statutory bar on receipt telephone: 202–208–8000; TDD: 202– 5 CFR Parts 2634 and 2636 of honoraria is legally inoperative, as 208–8025; FAX: 202–208–8037. discussed above, the implementing RINs 3209±AA00 and 3209±AA13 SUPPLEMENTARY INFORMATION: In provisions of 5 CFR part 2636 on National Treasury Employees Union v. supplemental disclosure are no longer Removal of Obsolete Regulations United States, 513 U.S. 454 (1995), the necessary. That results because, by Concerning the Inoperative Statutory U.S. Supreme Court overturned, as to removing a major incentive for Honorarium Bar, Revisions to Related most executive branch employees, the payments to charitable organizations in Supplemental Reporting honorarium bar at 5 U.S.C. app., section lieu of honoraria (which had been Requirements, and Conforming 501(b) which had been enacted as part Technical Amendments permissible notwithstanding the of the Ethics Reform Act of 1989. honorarium bar), the determination that AGENCY: Office of Government Ethics Subsequently, the Department of Justice the honorarium bar is no longer (OGE). determined that because of the scope of operative will virtually eliminate the ACTION: Final rule; technical the Supreme Court decision, the need for employees to make these amendments and removals. statutory ban on receipt of honoraria supplemental reports, in OGE’s opinion. was inoperative as to all Government While the statutory requirement for SUMMARY: The Office of Government employees. See OGE Memorandum to supplemental reporting of information Ethics is removing obsolete executive Designated Agency Ethics Officials, about charitable payments in lieu of branch regulatory provisions General Counsels and Inspectors honoraria remains, it no longer justifies # implementing the statutory honorarium General of February 28, 1996 ( DO–96– a separate regulatory structure and form, bar, which is no longer legally 012). On that basis, this rulemaking and the attendant continuing need for operative. In addition, OGE is removing removes the provisions in OGE’s distinct Paperwork Reduction Act related executive branch regulatory executive branchwide regulations at clearance. provisions concerning a dormant special subpart B of 5 CFR part 2636 that reporting requirement for payments to previously implemented the In place thereof, this special charitable organizations in lieu of honorarium bar, which is now legally supplemental reporting requirement honoraria. That reporting requirement is inoperative. By final rule at 62 FR will be preserved in a dormant status, being subsumed (for those few to whom 48746–48748 (September 17, 1997), by subsuming its basic outline into the it may apply) as part of the overall OGE has already removed cross- overall executive branch financial executive branch financial disclosure references to the honorarium bar that disclosure system at 5 CFR part 2634. regulation, but will remain inactive for were contained in the executive branch Minor changes to that part are being now, pending further examination. For regulations on financial disclosure and made by this current rulemaking to conformity with these changes, OGE is standards of ethical conduct at 5 CFR conform with the law by limiting the also making minor technical parts 2634 and 2635. potential scope of this special reporting amendments to regulatory provisions By this current rulemaking, OGE is requirement to public financial covering the overall executive branch also removing from 5 CFR part 2636 the disclosure filers, to eliminate reference financial disclosure system and the provisions in § 2636.205 on special to a supplemental report form, and to statutory restrictions for certain confidential reporting of information preserve the supplemental reporting employees on outside earned income, about payments to charitable requirement as dormant (not currently employment and affiliations. organizations in lieu of honoraria, as a effective) for the executive branch, DATES: These technical amendments supplement to employee financial pending further determination of its and removals are effective August 12, disclosure reports. That requirement viability. Its viability remains somewhat 1998, except that § 2634.302(a)(2) is was specified in the financial disclosure of an open question, in light of the stayed indefinitely until OGE makes a portion of the Ethics Reform Act of 1989 inoperability of the related honorarium final determination about its status. (5 U.S.C. app., section 102(a)(1)(A)), but bar, since these provisions were enacted Once that determination is made, OGE has never been activated for the together as part of the Ethics Reform Act will publish an appropriate document executive branch. The effective date of of 1989. If this supplemental reporting in the Federal Register, and will also the provisions in 5 CFR part 2636 to requirement is subsequently activated, notify executive branch departments implement this special reporting OGE will notify affected executive and agencies by memorandum. requirement was deferred several times branch departments and agencies, and 43068 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations provide them with appropriate disclosure reports (SF 278s, OMB § 2634.601 [Amended] guidance. control #3209–0001) will be advised of 3. Section 2634.601 is amended by Finally, in order to conform with the this supplemental confidential reporting removing paragraph (c) and removals and changes discussed above, requirement by separate OGE guidance redesignating paragraph (d) as new OGE is making minor technical and by their agencies, if it is paragraph (c). amendments to the regulatory subsequently activated. For now, it will provisions in 5 CFR part 2636 be subsumed by the financial disclosure PART 2636Ð[AMENDED] concerning restrictions under 5 U.S.C. regulation at 5 CFR part 2634, which 4. The authority citation for part 2636 app., section 501(a) and section 502 on will preserve the basic outline of this continues to read as follows: outside earned income, employment supplemental requirement. Further, if it and affiliations which apply to certain is activated, OGE expects a very low Authority: 5 U.S.C. App. (Ethics in noncareer employees. Those technical volume of these supplemental reports, Government Act of 1978); E.O. 12674, 54 FR amendments remove references that 15159, 3 CFR, 1989 Comp., p. 215, as amounting to less than 50 per year for modified by E.O. 12731, 55 FR 42547, 3 CFR, become obsolete, in light of the changes the entire executive branch, with fewer 1990 Comp., p. 306. discussed above. than 10 private citizen filers per year. 5. The heading of part 2636 is revised Administrative Procedure Act These paperwork determinations have been approved by the Office of to read as follows: Pursuant to 5 U.S.C. 553(b) and (d), as Management and Budget. Director of the Office of Government PART 2636ÐLIMITATIONS ON Ethics, I find good cause exists for List of Subjects OUTSIDE EARNED INCOME, EMPLOYMENT AND AFFILIATIONS waiving the general notice of proposed 5 CFR Part 2634 rulemaking and 30-day delay in FOR CERTAIN NONCAREER effectiveness as to these revisions. The Administrative practice and EMPLOYEES notice and delayed effective date are procedure, Certificates of divestiture, 6. Section 2636.101 is revised to read being waived because these technical Conflict of interests, Financial as follows: amendments to certain OGE regulations disclosure, Government employees, concern matters of agency organization, Penalties, Privacy, Reporting and § 2636.101 Purpose. practice and procedure. Furthermore, it recordkeeping requirements, Trusts and This part is issued under authority of is in the public interest that the obsolete trustees. title VI of the Ethics Reform Act of 1989 provisions be removed as soon as (Pub. L. 101–194, as amended), to 5 CFR Part 2636 possible. implement the 15 percent outside Executive Order 12866 Administrative practice and earned income limitation at 5 U.S.C. procedure, Conflict of interests, app. 501(a) and the limitations at 5 In promulgating these technical Government employees, Penalties. U.S.C. app. 502 on outside employment amendments to its regulations, OGE has and affiliations, which are applicable to Approved: December 12, 1997. adhered to the regulatory philosophy certain noncareer employees. and the applicable principles of Stephen D. Potts, regulation set forth in section 1 of Director, Office of Government Ethics. § 2636.102 [Amended] Executive Order 12866, Regulatory 7. Section 2636.102 is amended by Planning and Review. These For the reasons set forth in the removing from paragraph (a) the words amendments have also been reviewed preamble, the Office of Government and terms ‘‘or to receive and review by the Office of Management and Ethics is amending parts 2634 and 2636 reports of honoraria recipients under Budget under that Executive order. of chapter XVI of 5 CFR as follows: § 2636.204 of this part’’. 8. Section 2636.103 is amended by Regulatory Flexibility Act PART 2634Ð[AMENDED] revising paragraph (a)(2)(i) to read as As Director of the Office of 1. The authority citation for part 2634 follows: Government Ethics, I certify under the continues to read as follows: Regulatory Flexibility Act (5 U.S.C. § 2636.103 Advisory opinions. chapter 6) that this rulemaking will not Authority: 5 U.S.C. App. (Ethics in (a) * * * have a significant economic impact on Government Act of 1978); 26 U.S.C. 1043; (2) * * * a substantial number of small entities E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., (i) Whether a particular entity because it primarily affects Federal p. 215, as modified by E.O. 12731, 55 FR qualifies as a charitable organization to 42547, 3 CFR, 1990 Comp., p. 306. executive branch agencies and their which a payment in lieu of honoraria employees. 2. In § 2634.302, paragraph (a)(2) is may be excluded from the definition of outside earned income and Paperwork Reduction Act revised to read as follows and is immediately stayed indefinitely: compensation under § 2636.303(b)(7) of The Paperwork Reduction Act (44 this part; or U.S.C. chapter 35) does not apply § 2634.302 Income. * * * * * because this rulemaking, involving (a) * * * technical amendments and removals, § 2636.104 [Amended] eliminates the detailed separate (2) In the case of payments to 9. Section 2636.104 is amended by regulatory structure (old OMB charitable organizations in lieu of removing from the first sentence of paperwork control #3209–0004, now honoraria, public filers shall also file a paragraph (a) the words ‘‘who accepts expired), which had been developed but separate confidential listing of an honorarium or engages in any other never made effective in the executive recipients, along with dates and conduct’’ and adding in their place the branch, for supplemental reporting of amounts of payments, to the extent words ‘‘who engages in any conduct’’, payments in lieu of honoraria to known. (See 5 U.S.C. app. 102(a)(1)(A) by removing the last sentence of charitable organizations. Executive and app. 501(c).) paragraph (a), and by removing branch employees filing public financial * * * * * paragraphs (c) and (d). Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43069

Subpart BÐ[Removed and Reserved] OGE. This supplemental regulation regarding fundraising in a personal provision narrows for FTC employees capacity. That standard bars employees 10. Subpart B of part 2636 is removed restrictions contained in the Standards from personally soliciting funds from and reserved. on employees’ personal fundraising those persons known by the employee 11. Section 2636.302 is amended by activities. The final rule is effective to be ‘‘prohibited sources’’ as defined in removing the sentence fragment at the upon issuance. 5 CFR 2635.203(d), including, pursuant end of the undesignated introductory EFFECTIVE DATE: August 12, 1998. to 2635.203(d)(3), any person who text, by removing paragraphs (a) and (b), ADDRESSES: Send comments to Ira S. ‘‘conducts activities regulated by the and by adding a new sentence at the end employee’s agency.’’ (‘‘prohibited of that section to read as follows: Kaye, Federal Trade Commission, Room 594, 6th and Pennsylvania Ave., NW, source’’ is also defined in subparagraphs § 2636.302 Relationship to other laws and Washington, DC 20580. (d)(1), (d)(2), (d)(4) and (d)(5) of § 2635.203 to include ‘‘any person who: regulations. FOR FURTHER INFORMATION CONTACT: ** * In particular, a covered Ira S. Kaye, (202) 326–2426, Federal (1) Is seeking official action by the noncareer employee should accept Trade Commission, Office of the employee’s agency; (2) Does business or compensation only after determining General Counsel. seeks to do business with the employee’s agency; . . . (4) Has that its receipt does not violate section SUPPLEMENTARY INFORMATION: 102 of Executive Order 12674, as interests that may be substantially amended, which prohibits a covered I. Background affected by performance or noncareer employee who is also a On August 7, 1992, the Office of nonperformance of the employee’s Presidential appointee to a full-time Governmental Ethics (OGE) published a official duties; or (5) Is an organization noncareer position from receiving any final rule entitled ‘‘Standards of Ethical a majority of whose members are outside earned income for outside Conduct for Employees of the Executive described in paragraphs (d) (1) through employment or for any other activity Branch’’ (Standards). See 57 FR 35006– (4) of this section.’’) performed during that Presidential 35067, as corrected at 57 FR 48557, 57 Because the FTC has enforcement appointment. FR 52583, and 60 FR 51667, and authority over unfair methods of 12. Section 2636.303 is amended by amended at 61 FR 42965–42970 (as competition in or affecting commerce removing from the penultimate sentence corrected at 61 FR 48733), 61 FR 50689– and unfair or deceptive acts or practices in the undesignated text at the end of 50691 (interim rule revisions adopted as in or affecting commerce, virtually all paragraph (c) the words and terms final at 62 FR 12531), and 62 FR 48746– businesses are ‘‘prohibited sources’’ for ‘‘under § 2636.204 of this part’’ and 48748, with additional grace period FTC employees. The Commission has adding in their place the words and extensions at 59 FR 4779–4780, 60 FR determined that given the breadth of terms ‘‘under 5 U.S.C. app. 501(c)’’, and 6390–6391, 60 FR 66857–66858, and 61 this enforcement authority, the by revising paragraph (b)(7) to read as FR 40950–40952. The Standards, fundraising provision is unnecessarily follows: codified at 5 CFR part 2653 and restrictive for FTC employees. effective February 3, 1993, establish Accordingly, § 5701.102 provides that it § 2636.303 Definitions. uniform standards of ethical conduct shall be permissible for FTC employees * * * * * applicable to all executive branch to solicit funds or other support from a (b) * * * personnel. person who is a prohibited source only (7) Payments to charitable The Standards, at 5 CFR 2635.105, by virtue of the definition in 5 CFR organizations in lieu of honoraria, as authorize executive branch agencies, 2635.203(d)(3), because the person is described in 5 U.S.C. app. 501(c) and with OGE’s concurrence, to publish regulated by the FTC (provided that the app. 505; or agency-specific supplemental other provision of 5 CFR 2635.808(c) * * * * * regulations necessary to implement continue to apply). [FR Doc. 98–20829 Filed 8–11–98; 8:45 am] their respective ethics programs. On Employees of the FTC, however, will BILLING CODE 6345±01±P May 27, 1993, the FTC published, with not be allowed to solicit contributions OGE’s concurrence, an interim rule from a person known to be a establishing a supplemental standard of ‘‘prohibited source’’ for the other FEDERAL TRADE COMMISSION conduct, 5 CFR 5701.101, requiring that defined reasons listed in 2635.203(d). all FTC employees receive prior Thus, an FTC employee may not engage 5 CFR Part 5701 approval before engaging in outside in charitable fundraising from any employment (58 FR 30695–30696). The RIN 3209±AA15 person (including an organization a interim rule prescribed a 45-day majority of whose members are such Supplemental Standards of Ethical comment period and invited comments persons) seeking official action by the Conduct for Employees of the Federal from all interested parties. This interim FTC, doing business with the FTC or Trade Commission rule is not being finalized at this time. having interests that may be The FTC is now issuing a second substantially affected by the AGENCY: Federal Trade Commission supplemental regulation because it has performance or nonperformance of the (FTC). determined that a new provision employee’s official duties. ACTION: Final rule. concerning fundraising activities, to be codified in a new § 5701.102 of 5 CFR, III. Matters of Regulatory Procedure SUMMARY: The Federal Trade is currently necessary to the successful Administrative Procedure Act Commission, with the concurrence of implementation of the Commission’s the Office of Government Ethics (OGE), ethics program. This rule amendment relates solely to is issuing a final rule amendment for agency management and personnel, and, employees of the FTC that supplements II. Analysis of the Amendment thus, is not subject to the notice and 5 CFR part 2635, the Standards of New Section 5701.102 of the final rule comment requirements of the Ethical Conduct for Employees of the supplements the executive branch-wide Administrative Procedure Act, 5 U.S.C. Executive Branch (Standards), issued by Standards at 5 CFR 2635.808(c) 553(a)(2). 43070 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations

Regulatory Flexibility Act her college alumni association. The 6416 Poppenhausen, Wasserkuppe, association is seeking contributions from Federal Republic of Germany. This The Federal Trade Commission has local businesses. The employee may, during determined under the Regulatory information may also be examined at her off-duty hours, seek a contribution from the Federal Aviation Administration Flexibility Act (5 U.S.C. chapter 6) that a company that is regulated by the this regulation will not have a Commission, but not from one that she (FAA), Central Region, Office of the significant economic impact on a knows is currently under Commission Regional Counsel, Attention: Rules substantial number of small entities investigation or is seeking official action by Docket No. 98–CE–05–AD, Room 1558, because it affects only Federal the Commission, does business or seeks to do 601 E. 12th Street, Kansas City, Missouri employees. business with the Commission, or has 64106; or at the Office of the Federal interests that may be substantially affected by Register, 800 North Capitol Street, NW, Paperwork Reduction Act the employee’s job. While the Standards of suite 700, Washington, DC. Conduct provide that companies under the The Federal Trade Commission has FOR FURTHER INFORMATION CONTACT: Mr. determined that the Paperwork agency’s enforcement authority generally are prohibited sources of an employee’s Mike Kiesov, Project Officer, Sailplanes/ Reduction Act (44 U.S.C. chapter 35) fundraising in a personal capacity, Gliders, Small Airplane Directorate, does not apply because this regulation § 5701.102 provides that employees of the Aircraft Certification Service, FAA, does not contain any information FTC may seek charitable contributions from 1201 Walnut, suite 900, Kansas City, collection requirements that require the an entity that is a prohibited source only Missouri 64106; telephone: (816) 426– approval of the Office of Management because its activities are subject to agency 6934; facsimile: (816) 426–2169. regulation. and Budget. SUPPLEMENTARY INFORMATION: [FR Doc. 98–21614 Filed 8–11–98; 8:45 am] List of Subjects in 5 CFR Part 5701 Events Leading to the Issuance of This BILLING CODE 6750±01±M Conflicts of interests, Government AD employees. A proposal to amend part 39 of the By direction of the Commission. DEPARTMENT OF TRANSPORTATION Federal Aviation Regulations (14 CFR Dated: July 28, 1998. part 39) to include an AD that would Donald S. Clark, Federal Aviation Administration apply to certain Alexander Schleicher Secretary, Federal Trade Commission. Model ASW–19 sailplanes was 14 CFR Part 39 Approved: August 4, 1998. published in the Federal Register as a notice of proposed rulemaking (NPRM) Stephen D. Potts, [Docket No. 98±CE±05±AD; Amendment 39± 10704; AD 98±17±02] on May 19, 1998 (63 FR 27514). The Director, Office of Government Ethics. NPRM proposed to require inspecting For the reasons set forth in the RIN 2120±AA64 the tow release cable guide fitting for preamble, the Federal Trade Airworthiness Directives; Alexander the proper location on the bulkhead. If Commission, with the concurrence of the cable guide release fitting is the Office of Government Ethics, Schleicher Segelflugzeugbau Model ASW±19 Sailplanes mounted on the front of the bulkhead, amends 5 CFR part 5701 as follows: the NPRM proposed to require removing AGENCY: Federal Aviation the cable guide release fitting, PART 5701ÐSUPPLEMENTAL Administration, DOT. remounting it on the rear of the STANDARDS OF ETHICAL CONDUCT ACTION: bulkhead, and adjusting the cable’s FOR EMPLOYEES FOR THE FEDERAL Final rule. neutral travel. Accomplishment of the TRADE COMMISSION SUMMARY: This amendment adopts a proposed action as specified in the 1. The authority citation for part 5701 new airworthiness directive (AD) that NPRM would be in accordance with is revised to read as follows: applies to certain Alexander Schleicher Alexander Schleicher Technical Note Segelflugzeugbau (Alexander No. 18, dated July 3, 1984. Authority: 5 U.S.C. 7301; 5 U.S.C. App. Schleicher) Model ASW–19 sailplanes. (Ethics in Government Act of 1978); 15 The NPRM was the result of U.S.C. 46(g); E.O. 12674, 54 FR 15159, 3 CFR, This AD requires inspecting the tow mandatory continuing airworthiness 1989 Comp., p. 215, as modified by E.O. release cable guide fittings for the information (MCAI) issued by the 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. correct mounting, and, if the fittings are airworthiness authority for Germany. 306; 5 CFR 2635.105, 2635.803, 2635.808(c). mounted in the front of the bulkhead, Interested persons have been afforded 2. A new § 5701.102 is added to read moving the fitting to the rear of the an opportunity to participate in the as follows: bulkhead and adjusting the neutral making of this amendment. No travel of the cable. This AD is the result comments were received on the § 5701.102 Fundraising activities of mandatory continuing airworthiness proposed rule or the FAA’s When engaging in personal information (MCAI) issued by the determination of the cost to the public. fundraising, as described at 5 CFR airworthiness authority for Germany. 2635.808(c), an employee of the Federal The actions specified by this AD are The FAA’s Determination Trade Commission may, intended to prevent premature release of After careful review of all available notwithstanding the prohibition of the tow cable during take-off, which information related to the subject § 2635.808(c)(1)(i), personally solicit could result in loss of the sailplane. presented above, the FAA has funds from a person who is a prohibited DATES: Effective September 26, 1998. determined that air safety and the source only under 5 CFR 2635.203(d)(3) The incorporation by reference of public interest require the adoption of (i.e., because the person ‘‘conducts certain publications listed in the the rule as proposed except for minor activities regulated by’’ the regulations is approved by the Director editorial corrections. The FAA has Commission). The other provisions of of the Federal Register as of September determined that these minor corrections § 2635.808(c) continue to apply to any 26, 1998. will not change the meaning of the AD such personal fundraising. ADDRESSES: Service information that and will not add any additional burden Example 1: A Federal Trade Commission applies to this AD may be obtained from upon the public than was already employee is president of the local branch of Alexander Schleicher Segelflugzeugbau, proposed. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43071

Cost Impact Rules Docket at the location provided (c) After remounting the cable fitting, prior to further flight, check the neutral travel of The FAA estimates that 100 sailplanes under the caption ADDRESSES. the cable and adjust if necessary, in in the U.S. registry will be affected by List of Subjects in 14 CFR Part 39 accordance with the Actions section in this AD. Air transportation, Aircraft, Aviation Alexander Schleicher TN No. 18, dated July Accomplishing the inspection will 3, 1984. take approximately 1 workhour per safety, Incorporation by reference, Safety. (d) Special flight permits may be issued in sailplane, at an average labor rate of accordance with sections 21.197 and 21.199 approximately $60 an hour. Based on Adoption of the Amendment of the Federal Aviation Regulations (14 CFR these figures, the total cost impact of the Accordingly, pursuant to the 21.197 and 21.199) to operate the sailplane inspection on U.S. operators is to a location where the requirements of this estimated to be $6,000, or $60 per authority delegated to me by the Administrator, the Federal Aviation AD can be accomplished. sailplane. (e) An alternative method of compliance or Administration amends part 39 of the The modification will take adjustment of the compliance time that Federal Aviation Regulations (14 CFR approximately 2 workhours, at an provides an equivalent level of safety may be average labor rate of $60 per hour. Parts part 39) as follows: approved by the Manager, Small Airplane cost approximately $20 per sailplane. PART 39ÐAIRWORTHINESS Directorate, FAA, 1201 Walnut, suite 900, Based on these figures, the total cost DIRECTIVES Kansas City, Missouri 64106. The request impact of the modification on U.S. shall be forwarded through an appropriate operators is estimated to be $14,000, or 1. The authority citation for part 39 FAA Maintenance Inspector, who may add $140 per sailplane. continues to read as follows: comments and then send it to the Manager, Small Airplane Directorate. Compliance Time of This AD Authority: 49 U.S.C. 106(g), 40113, 44701. Note 2: Information concerning the The compliance time of this AD is in § 39.13 [Amended] existence of approved alternative methods of calendar time instead of hours time-in- 2. Section 39.13 is amended by compliance with this AD, if any, may be service (TIS). The average monthly adding a new airworthiness directive obtained from the Small Airplane usage of the affected sailplane ranges Directorate. (AD) to read as follows: throughout the fleet. For example, one (f) Questions or technical information owner may operate the sailplane 25 98–17–02 Alexander Schleicher related to Alexander Schleicher Technical Segelflugzeugbau: Amendment 39– hours TIS in one week, while another Note No. 18, dated July 3, 1984, should be 10704; Docket No. 98–CE–05–AD. operator may operate the sailplane 25 directed to Alexander Schleicher hours TIS in one year. In order to ensure Applicability: Model ASW–19 sailplanes, Segelflugzeugbau, 6416 Poppenhausen, that all of the owners/operators of the serial numbers 19001 through 19405, Wasserkuppe, Federal Republic of Germany; certificated in any category. affected sailplane have inspected the telephone: 49.6658.890 or 49.6658.8920; mount location of the tow release cable Note 1: This AD applies to each sailplane facsimile: 49.6658.8923 or 49.6658.8940. guide fitting within a reasonable amount identified in the preceding applicability This service information may be examined at provision, regardless of whether it has been of time, the FAA is utilizing a the FAA, entral Region, Office of the modified, altered, or repaired in the area Regional Counsel, Room 1558, 601 E. 12th compliance time of 90 calendar days subject to the requirements of this AD. For Street, Kansas City, Missouri 64106. after the effective date of this AD. sailplanes that have been modified, altered, (g) The inspection and modification or repaired so that the performance of the Regulatory Impact required by this AD shall be done in requirements of this AD is affected, the The regulations adopted herein will owner/operator must request approval for an accordance with Alexander Schleicher not have substantial direct effects on the alternative method of compliance in Technical Note No. 18, dated July 3, 1984. States, on the relationship between the accordance with paragraph (e) of this AD. This incorporation by reference was national government and the States, or The request should include an assessment of approved by the Director of the Federal on the distribution of power and the effect of the modification, alteration, or Register in accordance with 5 U.S.C. 552(a) responsibilities among the various repair on the unsafe condition addressed by and 1 CFR part 51. Copies may be obtained levels of government. Therefore, in this AD; and, if the unsafe condition has not from to Alexander Schleicher Segelflugzeugbau, 6416 Poppenhausen, accordance with Executive Order 12612, been eliminated, the request should include Wasserkuppe, Federal Republic of Germany. it is determined that this final rule does specific proposed actions to address it. Compliance: Required within the next 90 Copies may be inspected at the FAA, Central not have sufficient federalism days after the effective date of this AD, unless Region, Office of the Regional Counsel, Room implications to warrant the preparation already accomplished. 1558, 601 E. 12th Street, Kansas City, of a Federalism Assessment. To prevent premature release of the tow Missouri, or at the Office of the Federal For the reasons discussed above, I cable during take-off, which could result in Register, 800 North Capitol Street, NW, suite certify that this action (1) is not a loss of the sailplane, accomplish the 700, Washington, DC. following: ‘‘significant regulatory action’’ under Note 3: The subject of this AD is addressed (a) Inspect the tow release cable guide Executive Order 12866; (2) is not a in German AD No. 84–115, dated July 16, fittings for a front or rear mount on the ‘‘significant rule’’ under DOT 1984. Regulatory Policies and Procedures (44 bulkhead of the sailplane in accordance with (h) This amendment becomes effective on FR 11034, February 26, 1979); and (3) the Action section in Alexander Schleicher September 26, 1998. will not have a significant economic Technical Note (TN) No. 18, dated July 3, impact, positive or negative, on a 1984. Issued in Kansas City, Missouri, on August (b) If the cable guide fitting is mounted on substantial number of small entities 4, 1998. the front of the bulkhead, prior to further Michael Gallagher, under the criteria of the Regulatory flight, remove the fitting and remount the Flexibility Act. A copy of the final cable guide fitting on the rear of the bulkhead Manager, Small Airplane Directorate, Aircraft evaluation prepared for this action is in accordance with the Action section in Certification Service. contained in the Rules Docket. A copy Alexander Schleicher TN No. 18, dated July [FR Doc. 98–21492 Filed 8–11–98; 8:45 am] of it may be obtained by contacting the 3, 1984. BILLING CODE 4910±13±U 43072 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION part 39) to include an AD that would time of 4 calendar months after the apply to all Glaser-Dirks Model DG–400 effective date of this AD. Federal Aviation Administration gliders was published in the Federal Regulatory Impact Register as a notice of proposed 14 CFR Part 39 rulemaking (NPRM) on May 21, 1998 The regulations adopted herein will [Docket No. 98±CE±07±AD; Amendment 39± (63 FR 27870). The NPRM proposed to not have substantial direct effects on the 10705; AD 98±17±03] require replacing the propeller shaft, the States, on the relationship between the bearings, and the front drive belt national government and the States, or RIN 2120±AA64 retaining rings with parts of improved on the distribution of power and Airworthiness Directives; Glaser-Dirks design. Accomplishment of the responsibilities among the various Flugzeugbau GmbH Model DG±400 proposed action as specified in the levels of government. Therefore, in Gliders NPRM would be in accordance with DG accordance with Executive Order 12612, Flugzeugbau Technical Note No. 826/ it is determined that this final rule does AGENCY: Federal Aviation 32, dated July 19, 1996, and DG not have sufficient federalism Administration, DOT. Flugzeugbau WORKING INSTRUCTION implications to warrant the preparation ACTION: Final rule. No. 1 for TN 826/32, dated July, 1996. of a Federalism Assessment. The NPRM was the result of For the reasons discussed above, I SUMMARY: This amendment adopts a mandatory continuing airworthiness certify that this action (1) is not a new airworthiness directive (AD) that information (MCAI) issued by the ‘‘significant regulatory action’’ under applies to all Glaser-Dirks Flugzeugbau airworthiness authority for Germany. Executive Order 12866; (2) is not a GmbH (Glaser-Dirks) Model DG–400 ‘‘significant rule’’ under DOT Interested persons have been afforded gliders. This AD requires replacing the Regulatory Policies and Procedures (44 an opportunity to participate in the propeller shaft, the bearings, and the FR 11034, February 26, 1979); and (3) making of this amendment. No front drive belt retaining rings with ones will not have a significant economic comments were received on the of improved design. This AD is the impact, positive or negative, on a proposed rule or the FAA’s result of mandatory continuing substantial number of small entities determination of the cost to the public. airworthiness information (MCAI) under the criteria of the Regulatory issued by the airworthiness authority for The FAA’s Determination Flexibility Act. A copy of the final Germany. The actions specified by this evaluation prepared for this action is After careful review of all available AD are intended to prevent failure of the contained in the Rules Docket. A copy information related to the subject propeller shaft caused by an ineffective of it may be obtained by contacting the presented above, the FAA has design, which could result in loss of Rules Docket at the location provided determined that air safety and the glider propulsion during critical phases under the caption ADDRESSES. public interest require the adoption of of flight. the rule as proposed except for minor List of Subjects in 14 CFR Part 39 DATES: Effective September 26, 1998. editorial corrections. The FAA has Air transportation, Aircraft, Aviation The incorporation by reference of determined that these minor corrections certain publications listed in the safety, Incorporation by reference, will not change the meaning of the AD Safety. regulations is approved by the Director and will not add any additional burden of the Federal Register as of September upon the public than was already Adoption of the Amendment 26, 1998. proposed. Accordingly, pursuant to the ADDRESSES: Service information that Cost Impact authority delegated to me by the applies to this AD may be obtained from Administrator, the Federal Aviation Glaser-Dirks Flugzeugbau GmbH, Im The FAA estimates that 35 gliders in Administration amends part 39 of the Schollengarten 19–20, 7520 Bruchsal 4, the U.S. registry will be affected by this Federal Aviation Regulations (14 CFR Germany; telephone: +49 7257–89–0; AD, that it will take approximately 5 part 39) as follows: facsimile: +49 7257–8922. This workhours per glider to accomplish this information may also be examined at action, and that the average labor rate is PART 39ÐAIRWORTHINESS the Federal Aviation Administration approximately $60 an hour. Parts cost DIRECTIVES (FAA), Central Region, Office of the approximately $460 per glider. Based on 1. The authority citation for part 39 Regional Counsel, Attention: Rules these figures, the total cost impact of continues to read as follows: Docket No. 98–CE–07–AD, Room 1558, this AD on U.S. operators is estimated 601 E. 12th Street, Kansas City, Missouri to be $26,600, or $760 per glider. Authority: 49 U.S.C. 106(g), 40113, 44701. 64106; or at the Office of the Federal § 39.13 [Amended] Register, 800 North Capitol Street, NW, Compliance Time of this AD 2. Section 39.13 is amended by suite 700, Washington, DC. The compliance time of this AD is in adding a new airworthiness directive FOR FURTHER INFORMATION CONTACT: calendar time instead of hours time-in- (AD) to read as follows: Mike Kiesov, Aerospace Engineer, FAA, service (TIS). The average monthly Small Airplane Directorate, Aircraft usage of the affected glider ranges 98–17–03 Glaser-Dirks Flugzeugbau GMBH: Certification Service, 1201 Walnut, suite throughout the fleet. For example, one Amendment 39–10705; Docket No. 98– 900, Kansas City, Missouri 64106; owner may operate the glider 25 hours CE–07–AD. telephone: (816) 426-6934; facsimile: TIS in one week, while another operator Applicability: Model DG–400 gliders, all (816) 426–2169. may operate the glider 25 hours TIS in serial numbers, certificated in any category. one year. In order to ensure that all of Note 1: This AD applies to each glider SUPPLEMENTARY INFORMATION: identified in the preceding applicability the owners/operators of the affected provision, regardless of whether it has been Events Leading to the Issuance of This glider have replaced the propeller shaft, AD modified, altered, or repaired in the area bearings and front drive belt retaining subject to the requirements of this AD. For A proposal to amend part 39 of the rings within a reasonable amount of gliders that have been modified, altered, or Federal Aviation Regulations (14 CFR time, the FAA is utilizing a compliance repaired so that the performance of the Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43073 requirements of this AD is affected, the Note 3: The subject of this AD is addressed comments on the proposal to the FAA. owner/operator must request approval for an in German AD 96–243 DG-Flugzeugbau, No comments to the proposal were alternative method of compliance in dated August 29, 1996. received. Class E airspace designations accordance with paragraph (c) of this AD. (f) This amendment becomes effective on for airspace extending from 700 feet or The request should include an assessment of September 26, 1998. the effect of the modification, alteration, or more above the surface of the earth are Issued in Kansas City, Missouri, on August repair on the unsafe condition addressed by published in paragraph 6005 of FAA 4, 1998. this AD; and, if the unsafe condition has not Order 7400.9E dated September 10, been eliminated, the request should include Michael Gallagher, 1997, and effective September 16, 1997, specific proposed actions to address it. Manager, Small Airplane Directorate, Aircraft which is incorporated by reference in 14 Compliance: Required within the next 4 Certification Service. CFR 71.1. The Class E airspace calendar months after the effective date of [FR Doc. 98–21493 Filed 8–11–98; 8:45 am] designation listed in this document will this AD, unless already accomplished. BILLING CODE 4910±13±U be published subsequently in the Order. To prevent failure of the propeller shaft caused by an ineffective design, which could The Rule result in loss of glider propulsion during This amendment to 14 CFR part 71 critical phases of flight, accomplish the DEPARTMENT OF TRANSPORTATION following: modifies the Class E airspace area at (a) Replace the propeller shaft, the Federal Aviation Administration Fortuna, CA. The development of a GPS bearings, and the front drive belt retaining SIAP has made this action necessary. rings with parts of improved design in 14 CFR Part 71 The effect of this action will provide accordance with paragraph 2 of the [Airspace Docket No. 98±AWP±3] adequate airspace for aircraft executing Instructions section of DG Flugzeugbau the GPS RWY 29 SIAP at Rohnerville Technical Note No. 826/32, dated July 19, Modification of Class E Airspace; Airport, Fortuna, CA. 1996, and WORKING INSTRUCTION No. 1 Fortuna, CA The FAA has determined that this for TN 826/32, dated July, 1996. regulation only involves an established (b) Special flight permits may be issued in AGENCY: Federal Aviation body of technical regulations for which accordance with sections 21.197 and 21.199 Administration (FAA), DOT. of the Federal Aviation Regulations (14 CFR frequent and routine amendments are 21.197 and 21.199) to operate the glider to a ACTION: Final rule. necessary to keep them operationally location where the requirements of this AD current. Therefore, this regulation—(1) SUMMARY: This action modifies the Class can be accomplished. is not a ‘‘significant regulatory action’’ E airspace area at Fortuna, CA. (c) An alternative method of compliance or under Executive Order 12866; (2) is not Additional controlled airspace adjustment of the compliance time that a ‘‘significant rule’’ under DOT extending upward from 700 feet or more provides an equivalent level of safety may be Regulatory Policies and Procedures (44 approved by the Manager, Small Airplane above the surface of the earth is needed FR 11034; February 26, 1979); and (3) Directorate, FAA, 1201 Walnut, suite 900, to contain aircraft executing the Global does not warrant preparation of a Kansas City, Missouri 64106. The request Positioning System (GPS) Standard Regulatory Evaluation as the anticipated shall be forwarded through an appropriate Instrument Approach Procedure (SIAP) impact is so minimal. Since this is a FAA Maintenance Inspector, who may add to Runway (RWY) 29 at Rohnerville comments and then send it to the Manager, routine matter that will only affect air Airport. The intended effect of this Small Airplane Directorate. traffic procedures and air navigation, it action is to provide adequate controlled Note 2: Information concerning the is certified that this rule will not have airspace for Instrument Flight Rules existence of approved alternative methods of a significant economic impact on a (IFR) operations at Rohnerville Airport, compliance with this AD, if any, may be substantial number of small entities Fortuna, CA. obtained from the Small Airplane under the criteria of the Regulatory Directorate. EFFECTIVE DATE: 0901 UTC October 8, Flexibility Act. (d) Questions or technical information 1998. related to DG Flugzeugbau Technical Note FOR FURTHER INFORMATION CONTACT: List of Subjects in 14 CFR Part 71 No. 826/32, dated July 19, 1996, and DG Larry Tonish, Airspace Specialist, Airspace, Incorporation by reference, Flugzeugbau WORKING INSTRUCTION No. Airspace Branch, AWP–520, Air Traffic 1 for TN 826/32, dated July, 1996, should be Navigation (air). Division, Western-Pacific Region, directed to DG Flugzeugbau GmbH, P.O. Box Adoption of the Amendment 4120, 76625 Bruchsal, Germany; telephone: Federal Aviation Administration, 15000 +49 7257–89–0; facsimile: +49 7257–8922. Aviation Boulevard, Lawndale, In consideration of the foregoing, the This service information may be examined at California 90261, telephone (310) 725– Federal Administration amends 14 CFR the FAA, Central Region, Office of the 6539. part 71 as follows: Regional Counsel, Room 1558, 601 E. 12th SUPPLEMENTARY INFORMATION: Street, Kansas City, Missouri 64106. PART 71ÐDESIGNATION OF CLASS A, (e) The replacements required by this AD History CLASS B, CLASS C, CLASS D, AND shall be done in accordance with DG On July 13, 1998, the FAA proposed CLASS E AIRSPACE AREAS; ROUTES; Flugzeugbau Technical Note No. 826/32, AND REPORTING POINTS dated July 19, 1996, and DG Flugzeugbau to amend 14 CFR part 71 by modifying WORKING INSTRUCTION No. 1 for TN 826/ the Class E airspace area at Fortuna, CA 1. The authority citation for 14 CFR 32, dated July, 1996. This incorporation by (63 FR 37510). Additional controlled part 71 continues to read as follows: reference was approved by the Director of the airspace extending upward from 700 Authority: 49 U.S.C. 106(g), 40103, 40113, Federal Register in accordance with 5 U.S.C. feet above the surface is needed to 552(a) and 1 CFR part 51. Copies may be 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– contain aircraft executing the GPS RWY 1963 Comp., p. 389; 14 CFR 11.69. obtained from DG Flugzeugbau GmbH, P.O. 29 SIAP at Rohnerville Airport. This Box 4120, 76625 Bruchsal, Germany. Copies action will provide adequate controlled § 71.1 [Amended] may be inspected at the FAA, Central Region, Office of the Regional Counsel, Room 1558, airspace for IFR operations at 2. The incorporation by reference in 601 E. 12th Street, Kansas City, Missouri, or Rohnerville Airport, Fortuna, CA. 14 CFR 71.1 of the Federal Aviation at the Office of the Federal Register, 800 Interested parties were invited to Administration Order 7400.9E, Airspace North Capitol Street, NW, suite 700, participate in this rulemaking Designations and Reporting Points, Washington, DC. proceeding by submitting written dated September 10, 1997, and effective 43074 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations

September 16, 1997, is amended as SIAP at Ells Field-Willits Municipal does not warrant preparation of a follows: Airport. The intended effect of this Regulatory Evaluation as the anticipated Paragraph 6005 Class E airspace areas action is to provide adequate controlled impact is so minimal. Since this is a extending upward from 700 feet or more airspace for Instrument Flight Rules routine matter that will only affect air above the surface of the earth (IFR) operations Ells Field-Willits traffic procedures and air navigation, it * * * * * Municipal Airport, Willits, CA. is certified that this rule will not have EFFECTIVE DATE: 0901 UTC October 8, a significant economic impact on a AWP CA E5 Fortuna, CA [Revised] 1998. substantial number of small entities Fortuna VORTAC under the criteria of the Regulatory ° ′ ′′ ° ′ ′′ FOR FURTHER INFORMATION CONTACT: (lat 40 40 17 N, long. 124 14 04 W) Larry Tonish, Airspace Specialist, Flexibility Act. Rohnerville Airport, CA (lat 40°33′14′′ N, long. 124°07′57′′ W) Airspace Branch, AWP–520, Air Traffic List of Subjects in 14 CFR Part 71 That airspace extending upward from 700 Division, Western-Pacific Region, feet above the surface and within a 6.5-mile Federal Aviation Administration, 15000 Airspace, Incorporation by reference, radius of the Rohnerville Airport and within Aviation Boulevard, Lawndale, Navigation (air). 1.8 miles each side of the Fortuna VORTAC California 90261, telephone (310) 725– 326° radial, extending from the VORTAC to 6539. Adoption of the Amendment 2 miles northwest of the VORTAC and within SUPPLEMENTARY INFORMATION: 1.8 miles northeast and 3.9 miles southwest In consideration of the foregoing, the of the Fortuna VORTAC 147° radial, History Federal Aviation Administration extending from the Fortuna VORTAC to 3 amends 14 CFR part 71 as follows: miles southeast of the Fortuna VORTAC and On June 17, 1998, the FAA proposed within 2.2 miles southwest and 3 miles to amend 14 CFR part 71 by establishing PART 71ÐDESIGNATION OF CLASS A, northeast of the 129° and 309° bearings from a Class E airspace area at Willits, CA (63 CLASS B, CLASS C, CLASS D, AND the Rohnerville Airport, extending from 6.5 FR 33021). Additional controlled CLASS E AIRSPACE AREAS; ROUTES; miles northwest to 2.6 miles southeast of the airspace extending upward from 700 AND REPORTING POINTS airport and within 1.8 miles each side of the feet above the surface is needed to Fortuna VORTAC 034° radial, extending from contain aircraft executing the GPS RWY 1. The authority citation for 14 CFR the VORTAC to 9.6 miles northeast of the 16 SIAP and GPS RWY 34 SIAP at Ells Fortuna VORTAC. That airspace extending part 71 continues to read as follows: upward from 1200 feet above the surface Field-Willits Municipal Airport. This action will provide adequate controlled Authority: 49 U.S.C. 106(g), 40103, 40113, within 3.9 miles southeast and 8.7 miles 40120; E.O. 10854, 24 FR 9565, 3 CFR 1959– ° airspace for IFR operations at Ells Field- northwest of the Fortuna VORTAC 229 1963 Comp., p. 389; 14 CFR 11.69. radial, extending from the Fortuna VORTAC Willits Municipal Airport, Willits, CA. to 16.1 miles southwest of the Fortuna Interested parties were invited to § 71.1. [Amended] VORTAC and that airspace bounded by a line participate in this rulemaking beginning at lat. 40°44′00′′ N, long. proceeding by submitting written 2. The incorporation by reference in ° ′ ′′ ° ′ ′′ 124 33 00 W; to lat. 40 49 00 N, long. comments on the proposal to the FAA. 14 CFR 71.1 of the Federal Aviation 124°30′00′′ W; to lat. 40°44′00′′ W, long. Administration Order 7400.9E, Airspace ° ′ ′′ No comments to the proposal were 124 30 00 W, thence to the point of Designations and Reporting Points, beginning. received. Class E airspace designations for airspace extending from 700 feet or dated September 10, 1997, and effective * * * * * more above the surface of the earth are September 16, 1997, is amended as Sherry Avery, published in paragraph 6005 of FAA follows: Acting Assistant Manager, Air Traffic Order 7400.9E dated September 10, Paragraph 6005 Class E airspace areas Division, Western-Pacific Region. 1997, and effective September 16, 1997, extending upward from 700 feet or more [FR Doc. 98–21603 Filed 8–11–98; 8:45 am] which is incorporated by reference in 14 above the surface of the earth BILLING CODE 4910±13±M CFR 71.1. The Class E airspace * * * * * designation listed in this document will be published subsequently in the Order. AWP CA E5 Willits, CA [New] DEPARTMENT OF TRANSPORTATION Ells Field-Willits Municipal Airport, AZ The Rule ° ′ ′′ ° ′ ′′ Federal Aviation Administration (lat. 39 27 03 N, long. 123 22 12 W) This amendment to 14 CFR part 71 That airspace extending upward from 700 14 CFR Part 71 establishes a Class E airspace area at feet above the surface within a 6.3-mile Willits, CA. The development of a GPS radius of the Ells Field-Willits Municipal [Airspace Docket No. 96±AWP±26] SIAP has made this action necessary. Airport and that airspace bounded by a line The effect of this action will provide ° ′ ′′ Establishment of Class E Airspace; beginning at lat. 39 28 00 N, long. adequate airspace for aircraft executing ° ′ ′′ ° ′ ′′ Willits, CA 123 30 15 W; lat. 39 44 30 N, long. the GPS RWY 16 SIAP and GPS RWY 123°40′15′′W; to lat. 39°49′45′′W, long. AGENCY: Federal Aviation 34 SIAP at Ells Field-Willits Municipal 123°26′30′′W; to lat. 39°32′11′′N, long. Administration (FAA), DOT. Airport, Willits, CA. 123°17′27′′W, thence clockwise along the 6.3- ACTION: Final rule. The FAA has determined that this mile radius of the Ells Field-Willits regulation only involves an established Municipal Airport, to the point of beginning. SUMMARY: This action establishes a Class body of technical regulations for which * * * * * E airspace area at Willits, CA. frequent and routine amendments are Issued in Los Angeles, California, on July Additional controlled airspace necessary to keep them operationally 31, 1998. extending upward from 700 feet or more current. Therefore, this regulation—(1) above the surface of the earth is needed is not a ‘‘significant regulatory action’’ Sherry Avery, to contain aircraft executing the Global under Executive Order 12866; (2) is not Acting Assistant Manager, Air Traffic Positioning System (GPS) Standard a ‘‘significant rule’’ under DOT Division, Western-Pacific Region. Instrument Approach Procedure (SIAP) Regulatory Policies and Procedures (44 [FR Doc. 98–21608 Filed 8–11–98; 8:45 am] to Runway (RWY) 16 and GPS RWY 34 FR 11034; February 26, 1979); and (3) BILLING CODE 4910±13±M Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43075

DEPARTMENT OF ENERGY 2400, or 1200 bps, full duplex, no II. Background parity, 8 data bits and 1 stop bit. User A. Regulatory History Federal Energy Regulatory assistance is available at 202–208–2474 Commission or by E-mail to The Commission, in Order Nos. 497 et [email protected]. 1 2 18 CFR Part 161 seq. and Order Nos. 566 et seq., This document is also available established rules intended to prevent [Docket No. RM98±7±000; Order No. 599] through the Commission’s Records and interstate natural gas pipelines from Reporting Interstate Natural Gas Information Management System providing preferential treatment to their Pipeline Marketing Affiliates on the (RIMS), an electronic storage and marketing or brokering affiliates. Internet retrieval system of documents submitted Specifically, the Commission adopted to and issued by the Commission after Standards of Conduct (codified at Part Issued July 30, 1998. November 16, 1981. Documents from 161 of the Commission’s regulations) 3 AGENCY: Federal Energy Regulatory November 1995 to the present can be and reporting requirements (codified in Commission. viewed and printed. RIMS is available sections 161.3(h)(2) and 250.16).4 ACTION: Final rule. in the Public Reference Room or The Standards of Conduct govern the remotely via Internet through FERC’s relationships between pipelines and SUMMARY: The Federal Energy Homepage using the RIMS link or the Regulatory Commission (Commission) is their marketing affiliates. In general, Energy Information Online icon. User amending its Standards of Conduct they provide that pipelines and their assistance is available at 202–208–2222, regulations to require that interstate marketing affiliates must function or by E-mail to natural gas pipelines identify the names independently of each other. Pipelines and addresses of their marketing [email protected]. cannot favor their marketing affiliates of affiliates on their web sites on the Finally, the complete text on diskette providing transportation services or in Internet and update the information in WordPerfect format may be providing transportation information or within three business days of any purchased from the Commission’s copy transportation discounts not available to change. Pipelines will also be required contractor, La Dorn System Corporation. non-affiliates. to state the dates the information was La Dorn Systems Corporation is located However, there was no requirement in last updated. in the Public Reference Room at 888 the Commission’s regulations for EFFECTIVE DATE: September 11, 1998. First Street, N.E., Washington, D.C. pipelines to report the names of their ADDRESSES: Federal Energy Regulatory 20426. marketing affiliates or changes in the Commission, 888 First Street, N.E., I. Introduction status of marketing affiliates as they Washington, DC 20426. occur through, for example, acquisitions FOR FURTHER INFORMATION CONTACT: The Federal Energy Regulatory of new affiliates, or divestitures, Stuart Fischer, Office of General Commission (Commission) is amending consolidations, or name changes of prior Counsel, Federal Energy Regulatory its regulations in section 161.3 to affiliates. Commission, 888 First Street, N.E., require that interstate natural gas Washington, D.C. 20426, Telephone: pipelines identify the names and (202) 208–1033. addresses of their marketing affiliates on 1 Order No. 497, 53 FR 22139 (June 14, 1988), SUPPLEMENTARY INFORMATION: In their web sites on the Internet. By doing FERC Stats. & Regs. 1986–1990 ¶ 30,820 (188) (Order No. 497); Order No. 497–A, order on addition to publishing the full text of so, the Commission will make it easier rehearing, 54 FR 52781 (December 22, 1989), FERC this document in the Federal Register, for the public to identify each interstate Stats. & Regs. 1986–1990 ¶ 30,868 91989); Order No. the Commission also provides all gas pipeline’s current marketing 497–B, order extending sunset date, 55 FR 53291 interested persons an opportunity to (December 28, 1990), FERC Stats. & Regs. 1986– affiliates. The new regulation is 1990 ¶ 30,908 (1990); Order No. 497–C, order inspect or copy the contents of this necessary to further assist the extending sunset date. 57 FR 9 (January 2, 1992), document during normal business hours Commission in its oversight efforts as FERC Stats, & Regs. 1991–1996 ¶ 30,934 (1991), in the Public Reference Room at 888 well as to permit shippers to effectively rehearing denied, 57 FR 5815 (February 18, 1992), First Street, N.E., Room 2A, 58 FERC ¶ 61,139 (1992); Tenneco Gas v. FERC monitor transportation transactions (affirmed in part and remanded in part), 969 F.2d Washington, D.C. 20426. between pipelines and their affiliated 1187 (D.C. Cir. 1992); Order No. 497–D, order on The Commission Issuance Posting marketers. remand and extending sunset date, FERC Stats. & System (CIPS) provides access to the Regs. 1991–1996 ¶ 30,958 (December 4, 1992), 57 texts of formal documents issued by the FR 48978 (December 14, 1992); Order No. 497–E, order on rehearing and extending sunset date, 59 Commission. CIPS can be accessed via FR 243 (January 4, 1994), 65 FERC ¶ 61,381 Internet through FERC’s Homepage (December 23, 1993); Order No. 497–F, order (http://www.ferc.fed.us) using the CIPS denying rehearing and granting clarification, 59 FR Link or the Energy Information Online 15336 (April 1, 1994), 66 FERC ¶ 61,347 (March 24, 1994); and Order No. 497–G, order extending sunset icon. The full text of this document will date, 59 FR 32884 (June 27, 1994), FERC Stats. & be available on CIPS in ASCII and Regs. 1991–1996 ¶ 30,996 (June 17, 1994). WordPerfect 6.1 format. CIPS is also 2 Standards of Conduct and Reporting available through the Commission’s Requirements for Transportation and Affiliate Transactions, Order No. 566, 59 FR 32885 (June 27, electronic bulletin board service at no 1994), FERC Stats. & Regs. 1991–1996 ¶ 30,997 charge to the user and may be accessed (June 17, 1994) (Order No. 566); Order No. 566–A, using a personal computer with a order on rehearing, 59 FR 42896 (October 20, 1994), modem by dialing 202–208–1397, if FERC Stats. & Regs. 1991–1996 ¶ 31,002 (October 14, 1994) (Order No. 566–A); Order No. 566–B, dialing locally, or 1–800–856–3920, if Order on rehearing, 59 FR 65707 (December 21, dialing long distance. To access CIPS, 1994), 69 FERC ¶ 61,334 (December 14, 1994). set your communications software to 3 18 CFR 161.3 (1998). 19200, 14400, 12000, 9600, 7200, 4800, 4 18 CFR 161.3(h)(2) and 250.16 (1998). 43076 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations

B. The NOPR not engage in transportation and mergers. PUCO states that requiring The May 13, 1998 Notice of Proposed transactions with their marketing the disclosure of affiliated marketer Rulemaking (NOPR) 5 proposed to add affiliates. information on each pipeline’s web site section 161.3(l), which would require Great Lakes comments that requiring will not impose a significant additional pipelines to post on their web sites on a pipeline to list marketing affiliates that burden on the pipeline, as the the Internet, the names and addresses of it does not conduct business with places Commission has previously required their marketing affiliates and to update an unnecessary burden on the pipeline that each pipeline post information on this information within three business to monitor the actions of its parents and a web site. Finally, PUCO states that the days of any change. A pipeline would subsidiaries, and adds to the burden on availability of the names and addresses also be required to state the date the the Commission and on non-affiliated of pipeline marketing affiliates will be information was last updated. shippers to monitor companies that may important to its staff for obtaining The NOPR stated that the proposed never conduct transactions with the necessary and timely information. new regulation was necessary to further pipeline subject to Commission Great Lakes states that it supports the assist the Commission’s oversight efforts oversight. Commission’s effort to utilize Internet technology to provide timely and as well as to enable the public to 2. Commission Ruling monitor pipeline-affiliate transactions. relevant information in a convenient Section 161.1 of the Commission’s Marketing affiliations change rapidly in way. regulations, 18 CFR 161.1 (1998), limits today’s business climate. It is important the applicability of the standards of C. Timing of Postings for the public and the Commission to conduct to any pipeline that has have a current picture of the pipelines’ 1. Comments transportation transactions with its marketing affiliates to determine if Several commenters opposed the marketing or brokering affiliate.7 The pipelines are complying with the proposal to update postings of the new Standard of Conduct is only regulatory requirements. names and addresses of marketing applicable to interstate natural gas The NOPR further stated that posting affiliates within three business days of pipelines that meet the criteria of marketing affiliates’ names and a change in the information. Williston section 161.1. Thus, the posting addresses on a pipeline’s web site on commented that it did not oppose the requirements would not apply to the Internet would minimize the burden three business day deadline, but would interstate natural gas pipelines that do on pipelines and the Commission’s be opposed to a shorter period. administrative resources. The NOPR not have transportation transactions Enron and MGSC raised specific concluded that the burden on pipelines with their marketing affiliates. Nor does concerns that a three day period for would be slight, as pipelines are already the name and address of a marketing updates would be burdensome.9 Enron required to have web sites under Order affiliate have to be posted unless the contends that a three day reporting No. 587–C and would only have to add marketing affiliate has transportation deadline will add a burden on pipeline the affiliate information. transactions on the affiliated pipeline. staff and resources without providing We note that a marketing affiliate need any additional protection against C. Federal Register Notice and not be a shipper to have a transportation discrimination. Enron states that the Comments 8 transaction with its affiliated pipeline. Commission does not fully appreciate The NOPR was published in the B. Posting Requirements the resources that would be required for Federal Register on May 19, 1998,6 with companies like Enron to identify and comments due on or before June 19, All of the commenters either supported or did not oppose the post name changes within three days. It 1998. The Commission received seven states that most energy companies today comments, which are discussed below. requirements that interstate natural gas pipelines identify the names and are diverse organizations with affiliates The commenters are: Shell Gas Pipeline engaged in many different enterprises. Company (Shell); Michigan Gas Storage addresses of their marketing affiliates on their web sites and update the By way of example, Enron states that in Company (MGSC); Williston Basin 1997 its corporate family had 109 Interstate Pipeline Company (Williston); information. Enron states that the posting incorporations, 101 acquisitions, 43 Great Lakes Gas Transmission Limited requirement provides an excellent name changes and six dissolutions, and Partnership (Great Lakes); Public opportunity to update the Commission’s that the majority of the companies Utilities Commission of Ohio (PUCO); regulations to take advantage of involved are not marketing affiliates. the Interstate Natural Gas Association of advances in information technology. Enron contends that, to ensure America (INGAA); and the Enron PUCO states that it believes that the compliance with the proposed rule, Interstate Pipelines (Enron). proposed rule will assist Commission pipelines must make a daily review of III. Discussion oversight efforts to ensure that pipelines a complete roster of affiliates, and that adhere to the standards of conduct. It jointly-owned or partnership pipelines A. Scope of the Rule further comments that the posting have the additional task of reviewing 1. Comments requirement will ensure the availability records of both operating and non- of timely information, which is operating companies or partners. Enron Shell states that, because the NOPR states that only by reviewing a proposes an amendment to Part 161 of important in today’s environment of increasing and numerous acquisitions comprehensive affiliate list, together the Commission’s regulations, the rule with information on whether an affiliate should be ‘‘applicable only for pipelines 7 Section 161.1 identifies transportation under buys or sells or transports gas on the and marketing affiliates to which this Part 157, Subpart A (Natural Gas Act certificate) affiliated pipeline, can a pipeline Part applies, as specified by section and Part 284, Subparts B (Natural Gas Policy Act) determine if a change must be posted. 161.1.’’ Specifically, Shell asks for or G (blanket certificate under the Natural Gas Act). MGSC comments that no showing has 8 clarification that the rule would not See Order No. 566, FERC Stats. & Regs. 1991– been made in the NOPR that the posting apply to interstate gas pipelines that do 1996 at 31,068–69 and Order No. 566–A, FERC Stats. & Regs. 1991–1996 at 31,126. For example, a marketing affiliate may act as an agent in a 9 In their comments, Enron, MGSC and Great 5 83 FERC ¶ 61,146 (1998). transaction by arranging for gas supplies and/or Lakes referred to the update period as three days, 6 63 Fed. Reg. 27526 (May 19, 1998). transportation for a shipper on the related pipeline. not three business days as stated in the NOPR. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43077 needs to be made as quickly as three requiring a lot of time searching business days would increase the days or 24 hours.10 MGSC states that corporate records. Enron further argues administrative burden associated with pipelines do not have contemporaneous that, unless the pipeline enters into a monitoring affiliate names and knowledge of their marketing affiliates’ new transaction or discount, the addresses and create havoc if changes business activities. pipeline has no immediate reason to were received on short notice and the MGSC further comments that know or anticipate affiliate name necessary administrative personnel to ‘‘marketing affiliates,’’ as defined in changes. post such information were unavailable. section 161.2(a) of the Commission’s Great Lakes supports INGAA’s Williston states that employees are not regulations, can be distantly related to a comments and states that the informed instantaneously of companies pipeline.11 MGSC states that its first Commission’s goal to enable it and that the pipeline has purchased. It marketing affiliate was a partnership, a nonaffiliated shippers to efficiently asserts that closings take place before partner of which is a subsidiary of monitor pipeline-affiliate transactions the information is disseminated to MGSC’s parent. MGSC states that its can be achieved by more limited pipeline employees, making it difficult parent has one representative on the requirements than those described in to ensure that the marketing affiliate management committee of the the NOPR. Great Lakes suggests that information is accurate in less than partnership, which is primarily engaged pipelines should report marketing three business days. Williston contends in generating electricity. MGSC asserts affiliate names and addresses that the three business day requirement that it is not in a position to post or contemporaneously with any regulated for posting changes to marketing know of changes in the affiliate’s transaction that the affiliate conducts affiliate names and addresses affords the activities and status on a day-to-day with the pipeline. Commission and the public adequate basis. Enron, Great Lakes and MGSC also notice of any changes without causing Both Enron and MGSC contend that a suggested alternative time periods for the problems that would be associated three-day update requirement would updating changes in the names and with a shorter time frame. lead to greater communications between addresses of marketing affiliates. Enron pipelines and their marketing affiliates. asks that, if the Commission does not 2. Commission Ruling Enron states that the imposition of a 24- accept INGAA’s proposal, it adopt a 30- The Commission is retaining the three hour or three-day update requirement day deadline to update marketing business day time period after a change would necessitate increased day-to-day affiliate names. Great Lakes proposes occurs in which a pipeline must update communications between the pipeline that a pipeline should be responsible for the names and addresses of its and the affiliate. MGSC states that, updating its posting of the names and marketing affiliates. under the proposed posting addresses of its marketing affiliates only As discussed earlier, a pipeline must requirements, pipelines would be after it has become aware of changes, only post and update the names and required to keep closer contact with regardless of the actual effective dates of addresses of marketing affiliates that are their marketing affiliates’ plans and the changes. MGSC asserts that, because involved in transportation transactions activities. MGSC contends that this marketing affiliates are customers of the on its pipeline facilities. Such would be inconsistent with the pipelines, pipelines will learn of their transactions are subject to the marketing prohibitions against inappropriate affiliates’ changes in names and affiliate rules. Consequently, it is entanglements between pipelines and addresses in the ordinary course of important that the pipeline, the marketing affiliates. business. MGSC contends that the marketing affiliate, the Commission and INGAA proposes an alternative to the NOPR did not present any reason for the public know of the affiliate NOPR’s three business day update needing, or even wanting, such status relationship when such transactions requirement, which was supported in changes posted on a more expedited occur. Pipelines have an obligation to the comments by Enron and Great basis. have up-to-date information on the Lakes. INGAA proposes that pipelines Finally, two commenters, Enron and identities of their marketing affiliates, report changes in marketing affiliate Williston, specifically addressed the 24- and to communicate that information to names and addresses hour update deadline proposed in the their employees, to enable the contemporaneously with any new concurrence to the NOPR. Enron employees to observe the marketing transportation transactions or discounts contends that the examples in the affiliate rules. For example, under with their marketing affiliates. Citing concurrence of 24-hour reporting section 161.3(f), to the extent a pipeline language from Order No. 497, INGAA deadlines are not comparable to the provides to a marketing affiliate argues that if a marketing affiliate has no updates proposed in the NOPR. Enron information related to the transportation transactions on its affiliated pipeline, contends that the 24-hour deadlines for of natural gas, it must provide that then there is no possibility for abuse.12 electric utilities to report emergency information contemporaneously to all Enron contends that INGAA’s deviations on the OASIS and for potential shippers, affiliated and non- suggestion that pipelines post names hydroelectric power licensees to report affiliated, on its system.13 Pipeline contemporaneously with discounts or deviations from state water quality employees must know the identities of new transactions meets the objective to standards involve exception-based relevant marketing affiliates to comply protect against discrimination without reporting. In contrast, Enron states that with that rule. keeping track of changes to marketing We believe that three business days is 10 In a concurring opinion to the NOPR, affiliates would require a continuous a sufficient and reasonable period of Commissioner Massey advocated a 24-hour period review of corporate organizational time in which to provide the after a change occurs as a deadline for posting updated information. records. Enron further states that the 24- Commission and non-affiliated shippers 11 Section 161.2(a) of the Commission’s hour posting deadline for discounts with a meaningful and timely regulations states that ‘‘affiliate,’’ when used in comports with INGAA’s suggestion to opportunity to monitor pipelines’ reference to any person in Part 161 or section post name changes concurrently with compliance with the marketing affiliate 250.16, means another person which controls, is posting discounts to the marketing rules. As Enron points out, the pace of controlled by, or is under common control with, such person. 18 CFR 161.2(a) (1998). affiliate. markets today is brisk. As a result, 12 Order No. 497, FERC Stats. & Regs. 1986–1990 Williston states that requiring updates at 31,131. within a shorter time frame than three 13 18 CFR 161.3(f) (1998). 43078 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations unduly discriminatory actions must be transportation agreements with duplicate the requirements of section corrected quickly if the correction is to marketing affiliates may not disclose 250.16 and is not redundant. be meaningful. A deadline of three non-affiliated shipper information Great Lakes asks that the Commission business days to update changes in the covered by section 161.3(e) or eliminate the requirement that pipelines names and addresses of marketing selectively disclose transportation list all of their affiliated entities, affiliates should provide enough time information under section 161.3(f). including marketing affiliates, in their for pipelines to obtain information Accordingly, INGAA’s proposal would annual Form 2 filings. Great Lakes about changes and to update their web leave an information gap because argues that the annual data in the Form sites. marketing affiliates in existing 2 does not keep abreast of changes in Williston does not object to the three transactions would not be covered. affiliate status and does not distinguish business day requirement.14 Only Enron We also reject the alternate posting marketing or brokering affiliates. and MGSC raised specific arguments time periods proposed by MGSC, Great We reject Great Lakes’s request. The that three business days is an Lakes and Enron. Choosing an purpose of the Form 2 is to provide inadequate period of time in which to amorphous standard such as when a adequate financial and statistical data update changes in the names and pipeline learns of the change in the on an annual basis to allow the addresses of marketing affiliates.15 ordinary course of business, as Commission, other government agencies Enron argues that it would have to suggested by MGSC and Great Lakes, or and the public to adequately assess a conduct a daily review of all of its a 30-day deadline, as proposed by pipeline’s operations and financial corporate affiliations because of the Enron, would defeat the purpose of condition. To this end, the requirement numerous changes that occur. However, making up-to-date information to list affiliates in the Form 2 includes because pipelines must post only the concerning pipelines’ transactions with all affiliates, not just marketing names and addresses of marketing their marketing affiliates publicly affiliates. The Form 2 data serve a valid affiliates that have transportation available. purpose that the information required transactions with their affiliated Finally, we are unconvinced that, as by this Final Rule does not duplicate. pipelines, Enron should not have to suggested by Enron and MGSC, keeping E. Waivers conduct an involved search to comply track of changes in the names and The NOPR did not address waivers of with this Final Rule. Moreover, because addresses of marketing affiliates is pipelines are already required to know the requirements that a pipeline post inconsistent with the principles of the identities of their marketing and update the names and addresses of separation between pipelines and their affiliates so that they can comply with its marketing affiliates on its web site. marketing affiliates. The Standards of the preexisting Standards of Conduct, At the time the Commission issued the Conduct do not prohibit transactions we are unpersuaded that the difficulty NOPR, it had not granted waivers of the between a pipeline and its marketing cited by MGSC concerning locating GISB web site requirements of Order affiliates but place restrictions on those marketing affiliates associated with a No. 587, et seq.,16 that extended beyond transactions to prevent pipelines from partnership is a legitimate reason for June 1, 1998. However, the Commission providing undue preferences to their requiring a longer update period than recently granted several waivers affiliates. To ensure compliance with three business days. extending beyond that date, including the marketing affiliate regulations, None of the alternative proposals waivers to pipelines that have filed pipelines must be aware of newly made by the commenters would further Standards of Conduct.17 the purpose of enabling the Commission acquired marketing affiliates and No commenter raised the waiver and non-affiliated shippers to monitor changes in status of preexisting issue. Nevertheless, we do not want to transactions between a pipeline and its marketing affiliates. force pipelines that received waivers of marketing affiliates in a timely manner. In conclusion, we find that three the Order No. 587 requirements to have INGAA proposed that a pipeline report business days is an adequate and to seek additional waivers of the changes in a marketing affiliate’s name reasonable amount of time for a pipeline requirements of this Final Rule. All of or addresses contemporaneously with to update on its web site changes in the the pipelines with a waiver of the Order any new transportation transaction or names and addresses of its marketing No. 587 requirements for posting new discount with the marketing affiliates. information on a web site use either an affiliate. However, INGAA’s proposal is D. Effect on Other Regulatory electronic bulletin board (EBB) or some inadequate for monitoring all types of Requirements conduct covered by the Standards of 16 Standards For Business Practices Of Interstate Conduct in Part 161 because it excludes INGAA asks that the Commission Natural Gas Pipelines, Order No. 587, 61 FR 39053 existing transactions involving newly relieve pipelines from the ‘‘redundant’’ (Jul. 26, 1996), III FERC Stats. & Regs. Regulations requirement to update their tariffs to Preambles ¶ 31,038 (Jul. 17, 1996); Order No. 587– acquired or renamed affiliates. For B, 62 FR 5521 (Feb. 6, 1997), III FERC Stats. & Regs. example, section 161.3(c) prohibits reflect marketing affiliate name and Regulations Preambles ¶ 31,046 (Jan. 30, 1997); preferences to affiliates in scheduling, address changes. However, there was no Order No. 587–C, 62 FR 10684 (Mar. 10, 1997), III balancing and curtailments, all matters prior requirement in the Commission’s FERC Stats. & Regs. Regulations Preambles ¶ 31,050 regulations that pipelines report the (Mar. 4, 1997); Order No. 587–D, order denying that apply to existing transactions. rehearing, 62 FR 19921 (Apr. 24, 1997), III FERC Further, pipelines that have existing names and addresses of their marketing Stats. & Regs. Regulations Preambles ¶ 31,052 (Apr. affiliates in their tariffs. 18, 1997); Order No. 587–E, order denying 14 Because the Commission is retaining the three There is a requirement, in section rehearing and request for waiver, 62 FR 25842 (May business day update period from the NOPR, we 250.16, that pipelines include in tariff 12, 1997), III FERC Stats. & Regs. Regulations need not address Williston’s and Enron’s comments Preambles ¶ 31,053 (May 6, 1997); Order No. 587– concerning an update period of less than three provisions a complete list of operating G, 63 FR 20072 (April 23, 1998), III FERC Stats. & business days. personnel and facilities shared by the Regs. Regulations Preambles ¶ 31,062 (April 16, 15 Great Lakes generally argued that it is not in a pipeline and its marketing affiliates, and 1998); and Order No. 587–H, 63 FR 39509 (July 23, position to ensure its compliance with the the procedures used to address and 1998), III FERC Stats. & Regs. Regulations Preambles ¶ llll(July 15, 1998). requirement, but did not provide details. INGAA resolve complaints by shippers and provided an alternative proposal, but did not 17 E.g., KO Transmission Company (Docket No. address why it believed that the three business day potential shippers. 18 CFR 250.16 RP98–200–000), Midcoast Interstate Transmission requirement would be inadequate. (1998). This Final Rule does not Company (Docket No. RP97–278–000). Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43079 other means approved by the requires no construction of facilities.23 1415 or send comments to the Office of Commission to comply with other Thus, neither an environmental impact Management and Budget, Office of Standard of Conduct requirements (e.g., statement nor an environmental Information and Regulatory Affairs section 161.3(h)).18 Such pipelines can assessment is required. (OIRA) (Attention: Desk Officer for the comply with the requirements of this VI. Information Collection Statement Federal Energy Regulatory Commission Final Rule during the waiver period by and Reporting Requirements (202) 395–3087, fax: (202) 395–7285).] identifying the names and addresses of their marketing affiliates on their EBBs, The OMB regulations require OMB to VII. Effective Date and Congressional or if the Commission has granted the approve certain reporting and record Notification pipeline a waiver of the EBB keeping (collections of information) This Final Rule will take effect on requirements, through the facility imposed by agency rule.24 OMB has September 11, 1998. The Commission approved by the Commission in lieu of approved the NOPR without comment. has determined, with the concurrence of an EBB. The Final Rule will affect one existing data collection, FERC–592. the Administrator of the Office of IV. Regulatory Flexibility Act Respondents subject to the filing Information and Regulatory Affairs of Certification requirements of this Final Rule will not the Office of Management and Budget, that this rule is not a ‘‘major rule’’ The Regulatory Flexibility Act of 1980 be penalized for failing to respond to within the meaning of section 251 of the (RFA) 19 generally requires a description these collections of information unless Small Business Regulatory Enforcement and analysis of rules that will have the collections of information display a Fairness Act of 1996.25 The Commission significant economic impact on a valid OMB control number. will submit the rule to both houses of substantial number of small entities. In Title: FERC–592, Marketing Affiliates Congress and the Comptroller General the NOPR, the Commission concluded of Interstate Pipelines. that the proposed rule would benefit Action: Proposed Data Collection, prior to its publication in the Federal small entities by making it easier for OMB Control No. 1902–0157. Register. small customers to monitor pipelines’ Respondents: Interstate natural gas List of Subjects in 18 CFR Part 161 transactions with their marketing pipelines (Business or other for-profit, affiliates. No comments were submitted including small businesses). Natural gas, Reporting and alleging any significant economic effect Frequency of Responses: On recordkeeping requirements. Occasion. on small entities. Accordingly, pursuant By the Commission. to section 605(b) of the RFA, the Necessity of Information: The Final Commission hereby certifies that the Rule revises the filing requirements David P. Boergers, regulations proposed herein will not contained in 18 CFR Part 161.3 for Acting Secretary. Standards of Conduct for interstate have a significant adverse impact on a In consideration of the foregoing, the substantial number of small entities. natural gas pipelines. The pipelines are being required to identify the names and Commission amends Part 161, Chapter I, V. Environmental Analysis addresses of their marketing affiliates on Title 18 of the Code of Federal Regulations, as set forth below. The Commission is required to their web sites on the Internet. The new requirements are necessary for the prepare an Environmental Assessment PART 161ÐSTANDARDS OF Commission’s oversight activities and or an Environmental Impact Statement CONDUCT FOR INTERSTATE for the public to be able to monitor for any action that may have a PIPELINES WITH MARKETING pipeline-affiliate transactions. This significant adverse effect on the human AFFILIATES environment.20 The Commission has additional information provides the Commission and the public with current categorically excluded certain actions 1. The authority citation for Part 161 information on marketing affiliates to from these requirements as not having a continues to read as follows: significant effect on the human make a determination that pipelines are environment.21 This Final Rule falls in compliance with regulatory Authority: 15 U.S.C. 717–717w, 3301– within the categorical exclusion which requirements. 3432; 42 U.S.C. 7101–7352. specifies that information gathering, The Commission received seven comments on its NOPR but none on its 2. In § 161.3, paragraph (l) is added to analysis, and dissemination are not read as follows: major federal actions that have a reporting or cost estimates. The significant effect on the human Commission’s responses to the § 161.3 Standards of Conduct. 22 comments are addressed in Part III of environment. The Final Rule also falls * * * * * under the categorical exclusion for rules this Final Rule. The Commission is concerning the sale, exchange, and submitting a copy of this Final Rule to (l) A pipeline must post the names transportation of natural gas that OMB for information purposes because and addresses of its marketing affiliates the Final Rule is not significantly on its web site on the public Internet different from the NOPR. 18 For example, the Commission approved KO and update the information within three Transmission Company’s use of a telephone Interested persons may obtain business days of any change. A pipeline recorded message instead of an EBB. KO information on the reporting must also state the date the information Transmission Company, 74 FERC ¶ 61,101 at 61,311 requirements by contacting the Federal was last updated. Postings must (1996). Energy Regulatory Commission, 888 19 conform with the requirements of 5 U.S.C. 601–612 (1996). First Street, NE., Washington, DC 20426 20 § 284.10 of this chapter. Order No. 486, Regulations Implementing the [Attention: Michael Miller, Office of the National Environmental Policy Act, 52 FR 47897 [FR Doc. 98–21573 Filed 8–11–98; 8:45 am] (Dec. 17, 1987), FERC Statutes and Regulations, Chief Information Officer, (202) 208– Regulations Preambles 1986–1990 ¶ 30,783 (1987). BILLING CODE 6717±01±P 21 18 CFR 380.4 (1998). 23 18 CFR 380.4(a)(27) (1998). 22 18 CFR 380.4(a)(5) (1998). 24 5 CFR 1320.11 (1998). 25 5 U.S.C. 804(2). 43080 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION Dated: August 4, 1998. Regulation Development Section, Air Paul J. Pluta, Programs Branch (AR–18J), U.S. Coast Guard Rear Admiral, U.S. Coast Guard, Commander Environmental Protection Agency, 77 Eighth Coast Guard District. West Jackson Boulevard, Chicago, 33 CFR Part 117 [FR Doc. 98–21597 Filed 8–11–98; 8:45 am] Illinois 60604. [CGD 08±98±048] BILLING CODE 4910±15±M Copies of the State Plan submittal and EPA’s analysis are available for Drawbridge Operating Regulation; inspection at the U.S. Environmental Ouachita River, Louisiana ENVIRONMENTAL PROTECTION Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson AGENCY: AGENCY Coast Guard, DOT. Boulevard, Chicago, Illinois 60604. ACTION: Notice of temporary deviation 40 CFR Part 62 (Please telephone Douglas Aburano at from regulation. (312) 353–6960 before visiting the [MN59±01±7284a; FRL±6139±2] SUMMARY: The Commander, Eighth Region 5 Office.) Coast Guard District has issued a Approval and Promulgation of State FOR FURTHER INFORMATION CONTACT: temporary deviation from the regulation Plans for Designated Facilities and Douglas Aburano, Environmental governing the operation of the Union Pollutants; Minnesota; Municipal Engineer, Regulation Development Pacific Railroad vertical lift bridge Waste Combustor State Plan Submittal Section, Air Programs Branch (AR–18J), across the Ouachita River, mile 114.3, U.S. EPA, Region 5, Chicago, Illinois near Riverton, Caldwell Parish, AGENCY: Environmental Protection 60604, (312) 353–6960. Louisiana. This deviation allows the Agency. SUPPLEMENTARY INFORMATION: Union Pacific Railroad to close the ACTION: Direct final rule. I. Background bridge to navigation from 7 a.m. until 5 p.m. on Tuesday, August 25, 1998. This SUMMARY: The Environmental Protection On December 19, 1995 (60 FR 65382), temporary deviation is issued to allow Agency (EPA) is approving the the EPA adopted Emission Guidelines for the replacement of rail expansion Minnesota State Plan submittal for (EG) for existing MWC sources and New joints on the vertical life span. implementing the Municipal Waste Source Performance Standards for new DATES: This deviation is effective from Combustor (MWC) Emission Guidelines. sources. The EG was amended on 7 a.m. until 5 p.m. on Tuesday, August The State’s plan was submitted to EPA August 25, 1997 to address the vacature 25, 1998. on April 28, 1998. This submittal was of the portion of the EG that applied to made to satisfy the requirement of the MWCs that combust between 40 and FOR FURTHER INFORMATION CONTACT: Mr. 250 tons of MSW per day. The Clean Air David Frank, Bridge Administration 1990 Clean Air Act (CAA) that all Act requires that State regulatory Branch, Commander (ob), Eighth Coast MWCs with the capacity to combust agencies implement the EG according to Guard District, 501 Magazine Street, greater than 250 tons per day (tpd) of Municipal Solid Waste (MSW) adopt the a State Plan developed under sections New Orleans, Louisiana, 70130–3396, 111(d) and 129 of the CAA. telephone number 504–589–2965. emission standards as published in the Federal Register on December 19, 1995 On April 28, 1998, the State of SUPPLEMENTARY INFORMATION: The Union and in a subsequent Federal Register on Minnesota, through the Minnesota Pacific Railroad vertical lift span bridge August 27, 1997. The State’s submittal Pollution Control Agency (MPCA), across the Ouachita River near Riverton, was made in accordance with the submitted its ‘‘Section 111(d) Plan for Caldwell Parish, Louisiana has a vertical requirements for adoption and submittal Implementing the Large Municipal clearance of 7 feet above mean high of State Plans for designated facilities in Waste Combustor Emission Guidelines’’ water, elevation 71 feet Mean Sea Level, 40 CFR part 60, subpart B. The EPA to satisfy the section 111(d) and section in the closed-to-navigation position and finds that Minnesota’s Plan for existing 129 requirements for MWCs. The 57 feet in the open to navigation MWCs adequately addresses all of the following provides a brief discussion of position. Navigation on the waterway Federal requirements applicable to such the requirements for an approvable State consists primarily of tugs with tows and plans. If adverse comments are received Plan for existing large MWCs, as well as occasional recreational craft. Presently, on this action, the EPA will withdraw EPA’s review of Minnesota’s submittal the draw opens on signal for the passage this final rule and address the in regard to those requirements. More of vessels. comments received in response to this detailed information on the The Union Pacific Railroad requested action in a final rule on the related requirements for an approvable plan a temporary deviation from the normal proposed rule, which is being published and Minnesota’s submittal can be found operation of the bridge in order to do in the proposed rules section of this in the Technical Support Document maintenance work on the bridge. The Federal Register. A second public (TSD) accompanying this notice, which work consists of replacing the rail comment period will not be held. is available upon request. expansion joints on the bridge. These Parties interested in commenting on this joints are on the opposite end of the II. Evaluation of Minnesota’s Large action should do so at this time. This bridge from those that were replaced in MWC Plan approval makes the State’s plan June of this year. This work is essential federally enforceable. The following is EPA’s review of for the continued safe operation of the Minnesota’s § 111(d)/129 plan for vertical lift span. DATES: The ‘‘direct final’’ is effective on existing large MWCs against the The District Commander has, October 13, 1998, unless EPA receives requirements of 40 CFR part 60, subpart therefore, issued a deviation from the adverse or critical comments by B and subpart Cb: regulations in 33 CFR 117.5 authorizing September 11, 1998. If adverse comment the Union Pacific Railroad vertical lift is received, EPA will publish a timely A. Demonstration of Legal Authority span bridge across the Ouachita River, withdrawal and inform the public that The State must submit a Louisiana to remain in the closed-to- the rule will not take effect. demonstration of the State’s legal navigation position from 7 a.m. until 5 ADDRESSES: Written comments should authority to carry out the § 111(d)/129 p.m. on Tuesday, August 25, 1998. be sent to: Carlton T. Nash, Chief, plan as submitted. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43081

The MPCA submitted, as Attachment approval of the State Plan. The dioxin 7011.1282 Certified Municipal Waste A to the § 111(d)/129 plan, a letter from test data for those sources with Combustor Examiner Certificate Assistant Attorney General, Kathleen schedules longer than one year must be 7011.1283 Duties of a Certified Winters, which describes Minnesota’s from tests conducted during or after Municipal Waste Combustor authority to carry out and enforce the 1990. Examiner plan. The statutes cited in the letter The MPCA has attached a list of the 7011.1284 Fully Certified Operator were included as Attachment E to the affected MWC facilities and units that The requirements of § 60.36b are § 111(d)/129 plan. are regulated by the EG (see § 111(d)/ fulfilled by Minn. R. 7011.1225, subp. The EPA has reviewed the State’s 129 Plan Attachment F). This 1(B). demonstration and determined that the attachment also contains the units’ The MPCA has made a negative MPCA has the proper authority to adopt emission inventory. Most data provided declaration for air curtain incinerators. and implement the § 111(d)/129 plan in are actual emissions from the calendar This negative declaration obviates the accordance with 40 CFR 60.26. year 1995. Where actual emission data need for the State to set an opacity limit B. Criteria for an Adequate Enforceable were not available, AP–42 emission for these sources. Mechanism factors were used. Of the four facilities that will be E. Testing, Monitoring, Recordkeeping In its submittal a State must identify affected by the State Plan, three have and Reporting the enforceable State mechanisms compliance schedules that will extend The § 111(d)/129 State Plan must selected by the State for implementing beyond one year of the approval of the include requirements for the ongoing the EG. The MPCA has chosen a State Plan. The MPCA has included in testing, monitoring, recordkeeping, and combination of State rules, Title V the State Plan, as Attachment G, the reporting provisions from the EG. These permits, and Administrative Orders as dioxin test data for all of these sources. include, in particular: the enforceable mechanisms to The test data submitted are from tests • The performance testing methods implement the MWC EG. The MPCA has conducted after 1990. listed in § 60.58b of Subpart Eb (40 CFR adopted State rules as the cornerstone of D. Emission Limitations Part 60, Subpart Cb, § 60.38b), and their State plan. The State rules contain • The reporting and recordkeeping the standards that will apply to the large The State Plan must include emission provisions listed in § 60.59b of Subpart MWCs in the State. The State rules also limitations for MWC units that are at Eb (40 CFR Part 60, Subpart Cb, contain the December 19, 2000 date by least as protective as those found in the § 60.39b). which all large MWCs must be in EG. The performance testing requirements compliance with the standards in the The emission limits for the nine MWC listed in § 60.38b are met by the rules. Outside of the State rules are the pollutants described in subpart Cb are following in Minnesota Rules: individual source compliance dates and found in Minn. R. 7011.1227 and increments of progress leading to final 7011.1228. The emission limits are 7011.1260 Continuous Monitoring compliance with the standards. expressed in dimensions identical to 7011.1265 Required Performance The EPA’s guidance for implementing those found in the Emission Guidelines Tests, Methods, and Procedures the MWC EG states that if a mechanism except for particulate matter. 7011.1270 Performance Test, Waste different from a State rule is used to What the MPCA refers to as ‘‘front Composition Study and Ash implement the EG, the State must half particulate matter’’ is what EPA Sampling Frequency provide documentation on how the terms ‘‘particulate matter.’’ Minnesota’s Recordkeeping and reporting selected mechanisms will ensure that front half particulate matter standard is requirements are found in Minn. R. the emission standards for the equivalent to EPA’s particulate matter 7011.1285: Operating Records and pollutants regulated by § 129, and attach standard. Reports. a copy of the enforceable mechanism. In addition to emission limits for the F. Compliance Schedules The MPCA has included, as nine pollutants regulated by the EG, Attachment B to its State Plan, a letter § 111(d)/129 State Plans must also Units that will need to be retrofitted addressing Minnesota’s legal authority include MWC operating practices to meet the emission limits in a State to use permits issued by the MPCA (§ 60.34b(b)), operator training and Plan, must submit compliance (including Title V permits) as the legal certification requirements (§ 60.35b), schedules. Retrofit schedules can extend enforceable mechanism to implement fugitive ash visible emission standards up to three years after the § 111(d)/129 the EG. The EPA has reviewed this letter (§ 60.36b), and air curtain incinerator State Plan approval, but no retrofit and found that Minnesota has the legal opacity requirements (§ 60.37b). schedule can extend beyond December authority to use Title V permits and The requirements of § 60.34(b) are 19, 2000. Units that commenced Administrative Orders to implement the fulfilled by Minn. R. 7011.1240, subp. 5; construction after June 26, 1987 must EG. entitled ‘‘Range of Operation’’ and by comply with the dioxin/furan and Minn. R. 7011.1240, subp. 2, entitled, mercury emission limits within one year C. Source Inventory and Emission ‘‘Particulate matter control device of plan approval or permit modification. Inventory operating temperature.’’ The § 111(d)/129 State Plan must also An inventory of MWC plants/units in The requirements of § 60.35b allow a specify legally enforceable increments the State affected by the EG, including State to develop its own operator and of progress toward compliance for MWC MWC units that have ceased operation training certification program. The units that have compliance or retrofit and are not partially or totally MPCA has developed its own operator schedules that extend past one year dismantled, must be submitted. An training and certification program and beyond approval of the § 111(d)/129 inventory of emissions from these MWC has submitted it as part of the State State Plan. units in the State must also be Plan. This program is found in All MWC units constructed after June submitted. Additionally, the EG requires Minnesota Rules: 26, 1987 are currently equipped with States to submit dioxin test data for 7011.1275 Personnel Training scrubbing systems and are allowed up to those units with compliance schedules 7011.1280 Operator Certification one year to retrofit activated carbon that extend beyond one year later than 7011.1281 Full Operator Certification injection for enhanced scrubber 43082 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations performance in order to control mercury conducted at location(s) within the III. Final Action and dioxin. For other pollutants, such as State, if requested. Based on the rationale discussed NOx and CO, the retrofit schedule can 3. Date, time, and place of hearing(s) above and in further detail in the TSD extend up to three years after State Plan prominently advertised in each region associated with this action, EPA is approval or December 19, 2000, affected. approving Minnesota’s April 28, 1998 whichever is earlier. 4. Availability of draft Section 111(d)/ submittal of its § 111(d)/129 plan for Compliance schedules for MWC units 129 State Plan for public inspection in existing large MWCs. As provided by 40 with compliance dates that extend more at least one location in each region to CFR 60.28(c), any revisions to than one year beyond the date of State which it will apply. Minnesota’s § 111(d)/129 plan or Plan approval must include legally 5. Notice of hearing provided to: associated regulations will not be enforceable increments of progress a. EPA Regional Administrator considered part of the applicable plan toward compliance. Each increment of until submitted by the State in progress must have an enforceable b. Local affected agencies accordance with 40 CFR 60.28 (a) or (b), compliance date in the § 111(d)/129 c. Other states affected as applicable, and until approved by State Plan. 6. Certification that the public EPA in accordance with 40 CFR part 60, The minimum five increments of hearing, if held, was conducted in subpart B. progress required by Section 60.21(h) of accordance with Subpart B and State The EPA is publishing this action Subpart B for each MWC unit within a procedures. without prior proposal because the state are as follows: 7. Hearing records must be retained Agency views this as a noncontroversial 1. Submitting a final control plan. for a minimum of two years. These amendment and anticipates no adverse 2. Awarding contracts for control records must include the list of comments. However, in a separate systems or process modifications or commentors, their affiliation, summary document in this Federal Register orders for purchase of components; of each presentation and/or comments publication, EPA is proposing to 3. Initiating on-site construction or submitted, and the State’s responses to approve the State Plan should adverse installation of the air pollution control those comments. or critical comments be filed. This device(s) or process changes; The amendments to incorporate the action will be effective October 13, 1998 4. Completing on-site construction or EG requirements into the State’s existing unless, by September 11, 1998, adverse installation of control equipment or combustor rules were placed on public or critical comments are received. process changes; If EPA receives such comments, this notice in the State Register on action will be withdrawn before the 5. Final compliance. November 17, 1997. A copy of the effective date by publishing a timely Minn. R. 7011.1215 subp. 5, requires notice was mailed to 1380 people, and withdrawal in the Federal Register. All sources to submit compliance plans that of those, 193 were additionally mailed public comments received will then be contain increments of progress. Minn. R. a copy of the rule. A public hearing was addressed in a subsequent final rule 7011.1215 subp. 5, also requires that held on January 21, 1998, at the MPCA based on this action serving as a compliance with the standards shall be offices in St. Paul, MN. The public proposed rule. EPA will not institute a no later than December 19, 2000. There hearing was presided over by Judge second comment period on this action. are three facilities that will require Allan Klein. compliance schedules beyond one year Any parties interested in commenting The Title V permit for UPA–Elk River after State Plan approval. The on this action should do so at this time. facility was placed on public notice on enforceable increments of progress for If no such comments are received, the February 12, 1998. The comment period these sources have been submitted as public is advised that this action will be ended on March 13, 1998. Attachment C of the State Plan. The effective on October 13, 1998. The Administrative Order for the NSP requirement that sources constructed IV. Administrative after June 26, 1987 are allowed up to facility was placed on public notice on one year to retrofit activated carbon February 23, 1998 and the comment A. Executive Order 12866 period ended on March 25, 1998. injection for enhanced scrubber The Office of Management and Budget Each component of the State’s performance in order to control mercury has exempted this regulatory action submittal (the rules, Title V permit and and dioxin does not apply in Minnesota from Executive Order 12866 review. because all of the large MWC units in Administrative Order) was public that State commenced construction noticed at some time. Each of the public B. Executive Order 13045 prior to that date. notices stated that it would be This final rule is not subject to submitted to EPA as part of Minnesota’s G. Public Hearings Executive Order 13045, entitled 111(d) plan. Each public notice also ‘‘Protection of Children from As with State Implementation Plans stated that not only would that specific Environmental Health Risks and Safety for criteria pollutants, EPA regulations document be submitted but the other Risks,’’ because it is not an in 40 CFR Part 60, subpart B, make it components would be as well. ‘‘economically significant’’ action under clear that citizen input on § 111(d)/129 H. Submittal of State Progress Reports to Executive Order 12866. State Plans is encouraged in order to EPA help define appropriate emission C. Regulatory Flexibility standards and retrofit schedules. Under States must commit in the § 111(d)/ The Regulatory Flexibility Act (RFA) Subpart B, the minimum public 129 State Plan to submit annual reports generally requires an agency to conduct participation requirements are as on progress in the implementation of a regulatory flexibility analysis of any follows: the EG to the EPA. rule subject to notice and comment 1. Reasonable notice of opportunity In its submittal, the MPCA has rulemaking requirements unless the for one or more public hearing(s) at least committed to submitting annual agency certifies that the rule will not 30 days before the hearing. implementation progress reports to the have a significant economic impact on 2. One or more public hearing(s) on EPA beginning one year after EPA a substantial number of small entities. the § 111(d)/129 State Plan (or revision) approves the plan. Small entities include small businesses, Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43083 small not-for-profit enterprises, and likewise unaffected by a State audit Subpart YÐMinnesota small governmental jurisdictions. This privilege or immunity law. direct final rule will not have a Existing Large Municipal Waste significant impact on a substantial F. Submission to Congress and the Combustors General Accounting Office number of small entities because State § 62.5870 Identification of plan. Plan approvals under § 111(d) of the The Congressional Review Act, 5 ‘‘Section 111(d) Plan for CAA do not create any new U.S.C. 801 et seq., as added by the Small Implementing the Large Municipal requirements but simply approve Business Regulatory Enforcement Waste Combustor Emission Guidelines,’’ requirements that the State is already submitted by the State on April 28, imposing. Therefore, because the Fairness Act of 1996, generally provides 1998. The rules being approved as part Federal State Plan approval does not that before a rule may take effect, the of this plan are being approved for their create any new requirements, I certify agency promulgating the rule must applicability to large municipal waste that this action will not have a submit a rule report, which includes a combustors in Minnesota and should significant economic impact on a copy of the rule, to each House of the substantial number of small entities. Congress and to the Comptroller General apply only to these sources. Moreover, due to the nature of the of the United States. The EPA will § 62.5871 Identification of sources. Federal-State relationship under the submit a report containing this rule and The plan applies to all existing CAA preparation of a flexibility analysis other required information to the U.S. municipal waste combustor units with would constitute Federal inquiry into Senate, the U.S. House of the design capacity of 93.75*10 6 Btu/hr the economic reasonableness of a State Representatives, and the Comptroller or more. This is the same as having an action. The CAA forbids EPA to base its General of the United States prior to the applicability threshold of the capacity to actions concerning SIPs on such publication of the rule in the Federal process 250 tons per day or more of grounds. Union Electric Co., v. U.S. Register. This rule is not a ‘‘major rule’’ municipal solid waste. EPA, 427 U.S. 246, 255–66 (1976); 42 as defined by 5 U.S.C. 804(2). U.S.C. 7410(a)(2). § 62.5872 Effective date. G. Petitions for Judicial Review D. Unfunded Mandates The effective date of the plan for existing large waste combustors is Under section 307(b)(1) of the CAA, Under Section 202 of the Unfunded October 13, 1998. Mandates Reform Act of 1995, signed petitions for judicial review of this into law on March 22, 1995, EPA must action must be filed in the United States [FR Doc. 98–21678 Filed 8–11–98; 8:45 am] undertake various actions in association Court of Appeals for the appropriate BILLING CODE 6560±50±P with any proposed or final rule that circuit by October 13, 1998. Filing a includes a Federal mandate that may petition for reconsideration by the ENVIRONMENTAL PROTECTION result in estimated costs to State, local, Administrator of this final rule does not AGENCY or tribal governments in the aggregate; affect the finality of this rule for the or to the private sector, of $100 million purposes of judicial review nor does it 40 CFR Part 180 or more. This Federal action approves extend the time within which a petition pre-existing requirements under State for judicial review may be filed, and [OPP±300684; FRL±6017±6] law, and imposes no new requirements. shall not postpone the effectiveness of RIN 2070±78AB Accordingly, no additional costs to such rule or action. This action may not state, local, or tribal governments, or the be challenged later in proceedings to Potassium Dihydrogen Phosphate; private sector, result from this action. enforce its requirements. (See Section Exemption From the Requirement of a E. Audit Privilege and Immunity Law 307(b)(2)). Tolerance Nothing in this action should be List of Subjects in 40 CFR Part 62 AGENCY: Environmental Protection construed as making any determination Agency (EPA). or expressing any position regarding Environmental protection, ACTION: Final rule. Minnesota’s audit privilege and penalty Administrative practice and procedure, immunity law Sections 114C.20 to Air pollution control, Intergovernmental SUMMARY: This rule establishes an 114C.31 of the Minnesota Statute or its relations, Municipal solid waste, exemption from the requirement of a impact upon any approved provision in Reporting and recordkeeping tolerance for residues of potassium the State Plan. The action taken herein requirements. dihydrogen phosphate (KH2PO4) when does not express or imply any used as a fungicide in or on all food viewpoint on the question of whether Dated: July 23, 1998. commodities. EPA initiated this there are legal deficiencies in this or any Robert Springer, regulation under the Federal Food, other Act program resulting from the Acting Regional Administrator, Region V. Drug, and Cosmetic Act as amended by effect of Minnesota’s audit privilege and the Food Quality Protection Act of 1996 immunity law. A State audit privilege 40 CFR part 62 is amended as follows: (Pub. L. 104-170). This regulation and immunity law can affect only State eliminates the need to establish a PART 62Ð[AMENDED] enforcement and cannot have any maximum permissible level for residues of potassium dihydrogen phosphate, impact on Federal enforcement 1. The authority citation for part 62 authorities. EPA may at any time invoke when applied in accordance with good continues to read as follows: its authority under the Act including, agricultural practices. for example, sections 113, 167, 205, 211 Authority: 42 U.S.C. 7401–7642. DATES: This regulation is effective or 213, to enforce the requirements or August 12, 1998. Objections and 2. A new center heading and prohibitions of the State plan, requests for hearings must be received §§ 62.5870, 62.5871, and 62.5872 are independently of any State enforcement by EPA on or before October 13, 1998. effort. In addition, citizen enforcement added to read as follows: ADDRESSES: Written objections and under section 304 of the CAA is hearing requests, identified by the 43084 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations docket control number [OPP–300684], the requirement of a tolerance for uncontested claims or facts to the must be submitted to: Hearing Clerk residues of potassium dihydrogen contrary; and resolution of the factual (1900), Environmental Protection phosphate in or on all food issues(s) in the manner sought by the Agency, Rm. M3708, 401 M St., SW., commodities, when applied in requestor would be adequate to justify Washington, DC 20460. Fees accordance with good agricultural the action requested (40 CFR 178.32). accompanying objections and hearing practices. Information submitted in connection requests shall be labeled ‘‘Tolerance There were no comments or requests with an objection or hearing request Petition Fees’’ and forwarded to: EPA for referral to an advisory committee, may be claimed confidential by marking Headquarters Accounting Operations received in response to the proposed any part or all of that information as Branch, OPP (Tolerance Fees) and rule. CBI. Information so marked will not be forwarded to: EPA Headquarters Based on the reasons set forth in the disclosed except in accordance with Accounting Operations Branch, OPP preamble to the proposed rule, EPA is procedures set forth in 40 CFR part 2. (Tolerance Fees), P.O. Box 360277M, establishing an exemption from the A copy of the information that does not Pittsburgh, PA 15251. A copy of any requirement of a tolerance for potassium contain CBI must be submitted for objections and hearing requests filed dihydrogen phosphate as set forth inclusion in the public record. with the Hearing Clerk identified by the below. Information not marked confidential docket control number, [OPP–300684], I. Objections and Hearing Requests may be disclosed publicly by EPA must also be submitted to: Public without prior notice. The new FFDCA section 408(g) Information and Records Integrity provides essentially the same process II. Public Record and Electronic Branch, Information Resources and for persons to ‘‘object’’ to a regulation Submissions Services Division (7502C), Office of for an exemption from the requirement Pesticide Programs, Environmental EPA has established a record for this of a tolerance issued by EPA under new Protection Agency, 401 M St., SW., rulemaking under docket control section 408(d)and as was provided in Washington, DC 20460. In person, bring number [OPP–300684]. A public version the old section 408 and in section 409. a copy of objections and hearing of this record, including printed, paper However, the period for filing objections versions of electronic comments, which requests to Rm. 119, Crystal Mall #2 is 60 days, rather than 30 days. EPA (CM #2), 1921 Jefferson Davis Hwy., does not include any information currently has procedural regulations claimed as CBI, is available for Arlington, VA. which governs the submission of A copy of objections and hearing inspection from 8:30 a.m. to 4 p.m., objections and hearing requests. These requests filed with the Hearing Clerk Monday through Friday, excluding legal regulations will require some may be submitted electronically by holidays. The public record is located in modification to reflect the new law. sending electronic mail (e-mail) to: opp- Room 119 of the Public Information and However, until those modifications can Records Integrity Branch, Information [email protected]. Copies of be made, EPA will continue to use those electronic objections and hearing Resources and Services Division procedural regulations with appropriate (7502C), Office of Pesticide Programs, requests must be submitted as an ASCII adjustments to reflect the new law. file avoiding the use of special Environmental Protection Agency, CM Any person may, by October 13, 1998, #2, 1921 Jefferson Davis Hwy., characters and any form of encryption. file written objections to any aspect of Copies of electronic objections and Arlington, VA 22202. this regulation and may also request a Electronic comments can be sent hearing requests will also be accepted hearing on those objections. Objections directly to EPA at: on disks in WordPerfect 5.1/6.1 file and hearing requests must be filed with [email protected] format or ASCII file format. All copies the Hearing Clerk, at the address given of electronic objections and hearing under the ‘‘ADDRESSES’’ section (40 Electronic comments must be requests must be identified by the CFR 178.20). A copy of the objections docket number [OPP–300684]. No submitted as an ASCII file avoiding the and/or hearing requests filed with the use of special characters and any form Confidential Business Information (CBI) hearing clerk should be submitted to the should be submitted through e-mail. of encryption. OPP docket for this rulemaking. The The official record for this Copies of electronic objections and objections submitted must specify the rulemaking, as well as the public hearing requests on this rule may be provisions of the regulation deemed version, as described above, is kept in filed online at many Federal Depository objectionable and the grounds for the paper form. Accordingly, in the event Libraries. objections (40 CFR 178.25). Each there are objections and hearing request, FOR FURTHER INFORMATION CONTACT: By objection must be accompanied by the EPA will transfer any copies of mail: Rita Kumar, c/o Product Manager fee prescribed by 40 CFR 180.33(i). If a objections and hearing requests received (PM) 91, Biopesticides and Pollution hearing is requested, the objections electronically into printed, paper form Prevention Division (7511C), must include a statement of the factual as they are received and will place the Environmental Protection Agency, 401 issues(s) on which a hearing is paper copies in the official rulemaking M St., SW., Washington, DC 20460. requested, the requestor’s contentions record. The official rulemaking record is Office location, telephone number and on such issues, and a summary of any the paper record maintained at the e-mail address: 9th fl., CM #2 1921 evidence relied upon by the objector (40 Virginia address in ‘‘ADDRESSES’’ at Jefferson Davis Hwy., Arlington, VA CFR 178.27). A request for a hearing the beginning of this document. 22202, (703)308-8291; e-mail: will be granted if the Administrator [email protected]. determines that the material submitted III. Regulatory Assessment SUPPLEMENTARY INFORMATION: In the shows the following: There is a genuine Requirements Federal Register of March 3, 1998 (63 and substantial issue of fact; there is a This final rule establishes an FR 10352) (FRL–5772-4), EPA proposed, reasonable possibility that available exemption from the tolerance pursuant to section 408(e) of the Federal evidence identified by the requestor requirement under FFDCA section Food, Drug, and Cosmetic Act (FFDCA), would, if established resolve one or 408(d) in response to a petition 21 U.S.C. 346a(d), to amend 40 CFR part more of such issues in favor of the submitted to the Agency. The Office of 180 by establishing an exemption from requestor, taking into account Management and Budget (OMB) has Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43085 exempted these types of actions from ‘‘major rule’’ as defined by 5 U.S.C. DATES: This regulation is effective review under Executive Order 12866, 804(2). August 12, 1998. Objections and entitled Regulatory Planning and requests for hearings must be received List of Subjects in 40 CFR Part 180 Review (58 FR 51735, October 4, 1993). by EPA on or before October 13, 1998. This final rule does not contain any Environmental protection, ADDRESSES: Written objections and information collections subject to OMB Administrative practice and procedure, hearing requests, identified by the approval under the Paperwork Agricultural commodities, pesticides docket control number [OPP–300683], Reduction Act (PRA), 44 U.S.C. 3501 et and pests, Reporting and recordkeeping must be submitted to: Hearing Clerk seq., or impose any enforceable duty or requirements. (1900), Environmental Protection contain any unfunded mandate as Dated: July 29, 1998. Agency, Rm. M3708, 401 M St., SW., described under Title II of the Unfunded Washington, DC 20460. Fees Mandates Reform Act of 1995 (UMRA) Stephen L. Johnson, accompanying objections and hearing (Pub.L. 104-4). Nor does it require and Acting Director, Office of Pesticide Programs. requests shall be labeled ‘‘Tolerance prior consultation as specified by Therefore, 40 CFR chapter I is Petition Fees’’ and forwarded to: EPA Executive Order 12875, entitled amended as follows: Headquarters Accounting Operations Enhancing the Intergovernmental Branch, OPP (Tolerance Fees) and Partnership (58 FR 58093, October 28, PART 180Ð[AMENDED] forwarded to: EPA Headquarters 1993), or special considerations as Accounting Operations Branch, OPP 1. The authority citation for part 180 required by Executive Order 12898, (Tolerance Fees), P.O. Box 360277M, continues to read as follows: entitled Federal Actions to Address Pittsburgh, PA 15251. A copy of any Environmental Justice in Minority Authority: 21 U.S.C. 346a and 371. objections and hearing requests filed Populations and Low-Income 2. Section 180.1193 is added to with the Hearing Clerk identified by the Populations (59 FR 7629), February 16, subpart D to read as follows: docket control number, [OPP–300683], 1994), or require OMB review in must also be submitted to: Public accordance with Executive Order 13045, § 180.1193 Potassium dihydrogen Information and Records Integrity phosphate; exemption from the requirement entitled Protection of Children from of a tolerance. Branch, Information Resources and Environmental Health Risks and Safety Services Division (7502C), Office of Risks (62 FR 19885, April 23, 1997). In Potassium dihydrogen phosphate is Pesticide Programs, Environmental additions, since tolerance exemptions exempted from the requirement of a Protection Agency, 401 M St., SW., that are established on the basis of a tolerance in or on all food commodities Washington, DC 20460. In person, bring petition under section 408(d) of the when applied as a fungicide in a copy of objections and hearing FFDCA, such as the exemption in this accordance with good agricultural requests to Rm. 119, CM #2, 1921 final rule, do not require the issuance of practices. Jefferson Davis Hwy., Arlington, VA. a proposed rule, the requirements of the [FR Doc. 98–21520 Filed 8–11–98; 8:45 am] A copy of objections and hearing Regulatory Flexibility Act (RFA) (5 BILLING CODE 6560±50±F requests filed with the Hearing Clerk U.S.C. 601 et seq.) do not apply. may be submitted electronically by Nevertheless, the Agency previously sending electronic mail (e-mail) to: opp- assessed whether establishing ENVIRONMENTAL PROTECTION [email protected]. Copies of tolerances, exemptions from tolerances, AGENCY electronic objections and hearing raising tolerance levels or expanding requests must be submitted as an ASCII exemptions might adversely impact 40 CFR Part 180 file avoiding the use of special small entities and concluded, as a [OPP±300683; FRL±6017±5] characters and any form of encryption. generic matter, that there is no adverse Copies of electronic objections and economic impact. The factual basis for RIN 2070±AB78 hearing requests will also be accepted on disks in WordPerfect 5.1/6.1 file the Agency’s generic certification for Zucchini Juice Added to Buffalo Gourd format or ASCII file format. All copies tolerance actions published on May 4, Root Powder; Exemption From the of electronic objections and hearing 1981 (46 FR 24950), and was provided Requirement of a Tolerance to the Chief Counsel for Advocacy of the requests must be identified by the Small Business Administration. AGENCY: Environmental Protection docket number [OPP-300683]. No Confidential Business Information (CBI) IV. Submission to Congress and the Agency (EPA). ACTION: Final rule. should be submitted through e-mail. Comptroller General Copies of electronic objections and The Congressional Review Act, 5 SUMMARY: This rule establishes an hearing requests on this rule may be U.S.C. 801 et seq., as added by the Small exemption from the requirement of a filed online at many Federal Depository Business Regulatory Enforcement tolerance for residues of zucchini juice Libraries. Fairness Act of 1996, generally provides when used as an alternative source of FOR FURTHER INFORMATION CONTACT: By that before a rule may take effect, the the inert ingredient gustatory stimulant mail: Rita Kumar, c/o Product Manager agency promulgating the rule must cucurbitacin in the pesticide (PM) 91, Biopesticides and Pollution submit a rule report, which includes a formulations applied to various food Prevention Division (7511C), copy of the rule, to each House of the commodities. MicroFlo Company Environmental Protection Agency, 401 Congress and to the Comptroller General submitted a petition to EPA under the M St., SW., Washington, DC 20460. of the United States. EPA will submit a Federal Food, Drug, and Cosmetic Act Office location, telephone number and report containing this rule and other as amended by the Food Quality e-mail address: 9th fl., CM #2 1921 required information to the U.S. Senate, Protection Act of 1996 (Pub. L. 104-170) Jefferson Davis Hwy., Arlington, VA the U.S. House of Representatives and requesting the exemption. This 22202, (703)308-8291. e-mail: the Comptroller General of the United regulation eliminates the need to [email protected]. States prior to publication of the rule in establish a maximum permissible level SUPPLEMENTARY INFORMATION: In the the Federal Register. This is not a for residues of zucchini juice. Federal Register of June 25, 1997 (62 FR 43086 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations

34278) (FRL–5719–7), EPA issued a There were no comments received in juice (Cucurbita pepo juice), as notice pursuant to section 408 of the response to the notice of filing. compared to the buffalo gourd root Federal Food, Drug, and Cosmetic Act powder (Cucurbita foetidissima root I. Risk Assessment and Statutory (FFDCA), 21 U.S.C. 346a(e) announcing powder), as a cucurbit source of Findings the filing of a pesticide tolerance cucurbitacins. petition by MicroFlo Company, 719 New section 408(b)(2)(A)(i) of the The acute mammalian toxicity studies Second Street, Suite 12, Davis, CA FFDCA allows EPA to establish an indicate that the zucchini juice is 95616. This notice included a summary exemption from the requirement for a practically non-toxic to mammals. The of the petition prepared by the tolerance (the legal limit for a pesticide acute oral, acute dermal, acute petitioner and this summary contained chemical residue in or on a food) only inhalation, primary eye, and skin conclusions and arguments to support if EPA determines that the tolerance is irritation are all toxicity category IV. No its conclusion that the petition ‘‘safe.’’ Section 408(b)(2)(A)(ii) defines acute systemic toxicity, irritation or complied with the Food Quality ‘‘safe’’ to mean that ‘‘there is a dermal sensitization was exhibited in Protection Act (FQPA) of 1996. The reasonable certainty that no harm will the studies performed with the zucchini petition requested that 40 CFR result from aggregate exposure to the juice. 180.1001(d) be amended by adding pesticide chemical residue, including The pesticide inert ingredient zucchini (Cucurbita pepo) juice to all anticipated dietary exposures and all zucchini juice and the associated buffalo gourd (Cucurbita foetidissima) other exposures for which there is component cucurbitacin do not meet the root powder’s tolerance exemption reliable information.’’ This includes conditions of 40 CFR 158.690(b): based when used in or on various food exposure through drinking water and in on the results of Tier I toxicology commodities at 3.4 grams of residential settings, but does not include studies, neither Tier II nor III toxicology cucurbitacin per acre per season. occupational exposure. Section data are required. Inert ingredients are all ingredients 408(b)(2)(C) requires EPA to give special Given the small amounts used and that are not active as defined in 40 CFR consideration to exposure of infants and rapid degradation of zucchini juice and 153.125, and include, but are not children to the pesticide chemical associated cucurbitacins, no chronic limited to the following types of residue in establishing a tolerance and effects are expected. Neither the ingredients (except when they have a to ‘‘ensure that there is a reasonable zucchini juice and associated pesticidal efficacy of their own): certainty that no harm will result to cucurbitacins, nor metabolites, are solvents such as alcohols and infants and children from aggregate known to, or expected to have any effect hydrocarbons; surfactants such as exposure to the pesticide chemical on the immune or endocrine systems. polyoxyethylene polymers and fatty residue...’’ EPA performs a number of Zucchini juice and associated acids; carriers such as clay and analyses to determine the risks from cucurbitacins are not carcinogenic. diatomaceous earth; thickeners such as aggregate exposure to pesticide residues. III. Aggregate Exposures carrageenan and modified cellulose; First, EPA determines the toxicity of wetting, spreading and dispersing pesticides. Second, EPA examines In examining aggregate exposure, agents; propellants in aerosol exposure to the pesticide through food, FFDCA section 408 directs EPA to dispensers; microencapsulating agents; drinking water, and through other consider available information and emulsifiers. The term inert is not exposures that occur as a result of concerning exposures from the pesticide intended to imply nontoxicity; the pesticide use in residential settings. residue in food and all other non- ingredient may or may not be The data submitted in the petition occupational exposures, including chemically active. and other relevant material have been drinking water from groundwater or Cucurbitacins, found in plants of the evaluated and were considered in surface water and exposure through Family Cucutbitaceae, act specifically support of this tolerance exemption pesticide use in gardens, lawns, or on Diabroticine beetles (corn rootworm amendment. buildings (residential and other indoor and cucumber beetles) as movement uses). arrestants and compulsive feeding II. Toxicological Profile stimulants. These have been used in Consistent with section 408(b)(2)(D) A. Dietary Exposure pesticide products Slam/Adios and of FFDCA, EPA has reviewed the 1. Food. Assumptions, for the purpose Adios AG, which were developed to available scientific data and other of this maximum dietary risk - worst replace highly toxic corn rootworm and relevant information in support of this case scenario, (case crop - corn; the cucumber beetle insecticides. When action and considered its validity, example can be extended to other crops) used along with cucurbitacin in the completeness and reliability and the include that the zucchini juice and thus, formulation, a much smaller amount of relationship of this information to the cucurbitacin, is applied at the the pesticide active ingredient carbaryl human risk. EPA has also considered maximum label rate, the maximum is needed to achieve efficacy against available information concerning the number of times, the day of harvest, and these pests. variability of the sensitivities of major all of the material applied to the field is MicroFlo Company’s current source of identifiable subgroups of consumers, concentrated in the grain; with no loss cucurbitacin is buffalo gourd root including infants and children. of zucchini juice nor cucurbitacin due powder. The Agency established an to any environmental, physical, exemption from the requirement of a Acute Toxicity chemical microbial or milling/ tolerance for residues of buffalo gourd Acute mammalian toxicity data were processing degradation. This will result root powder (57 FR 40128, September 2, submitted on zucchini juice as well as in 2.4375 pounds of zucchini juice and 1992). Now, MicroFlo Company is buffalo gourd root powder(BGRP). 0.0073125 pounds (3.319875 grams) of adding zucchini juice as an additional Submitted data were found to be cucurbitacins per acre. source of cucurbitacin, since production acceptable and performed in accordance The national average grain yield for of buffalo gourd root powder is costly with the Subdivision M Guidelines. A corn is 120 - 130 bushels per acre. At and unreliable, and a notice of filing summary of the comparative toxicology 56 pounds per bushel, for the purpose was published on June 25, 1997, as data shows a more favorable of the calculation, that computes to mentioned above. toxicological profile for the zucchini 6,720 pounds per acre using the lower Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43087 yield value. The maximum label rates 1990, 55 FR 49700), and establishing a provisions of the regulation deemed allow for the application of 3.4 grams of permanent exemption from the objectionable and the grounds for the cucurbitacin per acre. Assuming all of requirement of a tolerance (September 2, objections (40 CFR 178.25). Each the cucurbitacin is concentrated in the 1992, 57 FR 40128), for buffalo gourd objection must be accompanied by the grain, cucurbitacin levels would be root powder as a source of cucurbitacin, fee prescribed by 40 CFR 180.33(i). If a 0.00051 grams cucurbitacin per pound support an amendment to the existing hearing is requested, the objections of grain corn. No adverse effects are tolerance exemption. EPA concludes must include a statement of the factual anticipated at this low exposure rate. that zucchini juice is not likely to issues(s) on which a hearing is 2. Drinking water exposure. present a dietary risk under any requested, the requestor’s contentions Cucurbitacins are insoluble in water and reasonably foreseeable circumstances. on such issues, and a summary of any transfer of the zucchini juice to drinking Accordingly, EPA finds that exempting evidence relied upon by the objector (40 water is highly unlikely. No leaching or zucchini juice from the requirement for CFR 178.27). A request for a hearing groundwater contamination is expected a tolerance will be safe in that there is will be granted if the Administrator to result from registered uses according a reasonable certainty of no harm from determines that the material submitted to good agricultural practice. No uses aggregate exposure to zucchini juice. shows the following: There is a genuine and substantial issue of fact; there is a are registered for application to bodies VII. CODEX Maximum Residue Level of water and none are being sought. reasonable possibility that available No international tolerances of evidence identified by the requestor B. Other Non-Occupational Exposure tolerance exemptions have been sought. would, if established resolve one or Registered uses are limited to VIII. Existing Tolerance or Tolerance more of such issues in favor of the agricultural crop production use. Exemptions for This Compound requestor, taking into account uncontested claims or facts to the IV. Cumulative Exposure to Substances Prior EPA findings of significant contrary; and resolution of the factual with Common Mechanisms of Toxicity relevance to this petition include an issues(s) in the manner sought by the Section 408(b)(2)(D)(v) requires that, exemption from the requirements of a requestor would be adequate to justify when considering whether to establish, tolerance for residues of buffalo gourd the action requested (40 CFR 178.32). modify, or revoke a tolerance, the root powder (Cucurbita foetidissima Information submitted in connection Agency consider ‘‘available root powder) when used as an inert with an objection or hearing request information’’ concerning the cumulative ingredient (gustatory stimulant) in may be claimed confidential by marking effects of a particular pesticide’s pesticide formulations applied to any part or all of that information as residues and ‘‘other substances that growing crops only, at application rates CBI. Information so marked will not be have a common mechanism of toxicity.’’ not to exceed 2.5 lbs/acre/season (3.4 disclosed except in accordance with Consideration of a common mode of gm/acre/season of cucurbitacin). The procedures set forth in 40 CFR part 2. toxicity is not appropriate given that the proposed rule was published on July 9, A copy of the information that does not zucchini juice is practically non-toxic to 1992 (57 FR 30454), and the final rule contain CBI must be submitted for mammals and no information indicates was published on September 2, 1992 (57 inclusion in the public record. that toxic effects would be cumulative FR 40128). Information not marked confidential with any other compounds. Further, no IX. Objections and Hearing Requests may be disclosed publicly by EPA other pesticides or substances are without prior notice. registered with this mode of action. The new FFDCA section 408(g) provides essentially the same process X. Public Record and Electronic V. Determination of Safety for Infants for persons to ‘‘object’’ to a regulation Submissions and Children for an exemption from the requirement EPA has established a record for this The use sites for the zucchini juice are of a tolerance issued by EPA under new rulemaking under docket control all agricultural for control of section 408(d)and as was provided in number [OPP-300683]. A public version Diabroticine beetles. Therefore, the old section 408 and in section 409. of this record, including printed, paper nondietary exposure to infants and However, the period for filing objections versions of electronic comments, which children is not expected. The fact that is 60 days, rather than 30 days. EPA does not include any information zucchini juice is practically non-toxic to currently has procedural regulations claimed as CBI, is available for mammals; and exposure is not likely to which governs the submission of inspection from 8:30 a.m. to 4 p.m., occur from use, lead EPA to conclude objections and hearing requests. These Monday through Friday, excluding legal that there is a reasonable certainty that regulations will require some holidays. The public record is located in no harm will result to infants and modification to reflect the new law. Room 119 of the Public Information and children from exposure to residue of However, until those modifications can Records Integrity Branch, Information zucchini juice. Because of the lack of be made, EPA will continue to use those Resources and Services Division toxicity for zucchini juice, EPA has not procedural regulations with appropriate (7502C), Office of Pesticide Programs, used the a safety factor analysis is adjustments to reflect the new law. Environmental Protection Agency, CM evaluating the risk posed by the Any person may, by October 13, 1998, ι2, 1921 Jefferson Davis Hwy., compound. This lack of toxicity also file written objections to any aspect of Arlington, VA 22202. supports not applying an additional this regulation and may also request a Electronic comments can be sent tenfold safety factor to protect infants hearing on those objections. Objections directly to EPA at: and children. and hearing requests must be filed with [email protected] the Hearing Clerk, at the address given VI. Determination of Safety for U.S. under the ‘‘ADDRESSES’’ section (40 Electronic comments must be Population CFR 178.20). A copy of the objections submitted as an ASCII file avoiding the The fact that zucchini juice is and/or hearing requests filed with the use of special characters and any form practically non-toxic to mammals, and hearing clerk should be submitted to the of encryption. previous Agency actions of granting a OPP docket for this rulemaking. The The official record for this temporary exemption (November 30, objections submitted must specify the rulemaking, as well as the public 43088 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations version, as described above, is kept in to the Chief Counsel for Advocacy of the libraries universal service support paper form. Accordingly, in the event Small Business Administration. mechanism from a calendar year cycle there are objections and hearing request, to a fiscal year cycle. This Order also XII. Submission to Congress and the EPA will transfer any copies of adjusts the amount of money available Comptroller General objections and hearing requests received for schools and libraries, and rural electronically into printed, paper form The Congressional Review Act, 5 health care providers for the period as they are received and will place the U.S.C. 801 et seq., as added by the Small from January 1, 1998 through June 30, paper copies in the official rulemaking Business Regulatory Enforcement 1999. In addition, this Order establishes record. The official rulemaking record is Fairness Act of 1996, generally provides rules of priority when a filing window the paper record maintained at the that before a rule may take effect, the is in effect. agency promulgating the rule must Virginia address in ‘‘ADDRESSES’’ at EFFECTIVE DATE: August 12, 1998. the beginning of this document. submit a rule report, which includes a copy of the rule, to each House of the FOR FURTHER INFORMATION CONTACT: XI. Regulatory Assessment Congress and to the Comptroller General Irene Flannery, Common Carrier Requirements of the United States. EPA will submit a Bureau, (202) 418–7400 or Adrian report containing this rule and other Wright, Common Carrier Bureau, (202) This final rule establishes an 418–7400. exemption from the tolerance required information to the U.S. Senate, SUPPLEMENTARY INFORMATION: requirement under FFDCA section the U.S. House of Representatives and This is a 408(d) in response to a petition the Comptroller General of the United summary of the Commission’s Fifth submitted to the Agency. The Office of States prior to publication of the rule in Order on Reconsideration and Fourth Management and Budget (OMB) has the Federal Register. This is not a Report and Order in CC Docket No. 96– exempted these types of actions from ‘‘major rule’’ as defined by 5 U.S.C. 45, adopted June 12, 1998 and released review under Executive Order 12866, 804(2). June 22, 1998. The full text is available for inspection and copying during entitled Regulatory Planning and List of Subjects in 40 CFR Part 180 normal business hours in the FCC Review (58 FR 51735, October 4, 1993). Environmental protection, This final rule does not contain any Reference Center (Room 239), 1919 M Administrative practice and procedure, St., N.W., Washington, D.C. information collections subject to OMB Agricultural commodities, pesticides approval under the Paperwork and pests, Reporting and recordkeeping I. Summary of Fifth Order on Reduction Act (PRA), 44 U.S.C. 3501 et requirements. Reconsideration and Fourth Report and seq., or impose any enforceable duty or Order in CC Docket No. 96–45 contain any unfunded mandate as Dated: July 29, 1998. A. Adjustment in Funding Year for described under Title II of the Unfunded Stephen L. Johnson, Mandates Reform Act of 1995 (UMRA) Schools and Libraries Support Acting Director, Office of Pesticide Programs. (Pub.L. 104-4). Nor does it require and Mechanism Therefore, 40 CFR chapter I is prior consultation as specified by 1. Upon reconsideration on our own amended as follows: Executive Order 12875, entitled motion, we find that it is in the public Enhancing the Intergovernmental PART 180Ð[AMENDED] interest to change the funding year for Partnership (58 FR 58093, October 28, the schools and libraries universal 1993), or special considerations as 1. The authority citation for part 180 service support mechanism from a required by Executive Order 12898, continues to read as follows: calendar year cycle (January 1– entitled Federal Actions to Address Authority: 21 U.S.C. 346a and 371. December 31) to a fiscal year cycle that Environmental Justice in Minority will run from July 1–June 30. Moreover, Populations and Low-Income § 180.1001 [Amended] we conclude that the transition to a Populations (59 FR 7629), February 16, 2. In § 180.1001, in paragraph (d), the fiscal year should be implemented 1994), or require OMB review in table is amended by adding the phrase immediately. In order to accommodate accordance with Executive Order 13045, ‘‘ ; or, Zucchini juice (Cucurbita pepo the transition to a fiscal year funding entitled Protection of Children from juice)’’ after ‘‘Buffalo gourd root powder cycle, the first funding period will be Environmental Health Risks and Safety (Cucurbita foetidissima root powder)’’ the 18-month period that runs from Risks (62 FR 19885, April 23, 1997). In in the ‘‘Inert Ingredients’’ column. January 1, 1998 through June 30, 1999. additions, since tolerance exemptions The second funding cycle, therefore, [FR Doc. 98–21521 Filed 8–11–98; 8:45 am] that are established on the basis of a will begin on July 1, 1999. Applications petition under section 408(d) of the BILLING CODE 6560±50±F submitted during the initial 75-day FFDCA, such as the exemption in this filing window and approved for funding final rule, do not require the issuance of by Schools and Libraries Corporation a proposed rule, the requirements of the FEDERAL COMMUNICATIONS (SLC), therefore, will be funded through Regulatory Flexibility Act (RFA) (5 COMMISSION June 30, 1999, to the extent permitted by U.S.C. 601 et seq.) do not apply. 47 CFR Parts 54 and 69 funding constraints. Parties seeking Nevertheless, the Agency previously support for the following fiscal year may assessed whether establishing [CC Docket No. 96±45; FCC 98±120] begin to file applications on October 1, tolerances, exemptions from tolerances, 1998. We direct SLC, in consultation raising tolerance levels or expanding Federal-State Joint Board on Universal with the Common Carrier Bureau, to exemptions might adversely impact Service establish a filing window for the next small entities and concluded, as a AGENCY: Federal Communications fiscal year, to open no later than October generic matter, that there is no adverse Commission. 1, 1998. We also conclude that SLC economic impact. The factual basis for ACTION: Final rule. should determine the length of that the Agency’s generic certification for window and resolve other tolerance actions published on May 4, SUMMARY: This Order changes the administrative matters necessary to 1981 (46 FR 24950), and was provided funding year for the schools and implement a filing window. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43089

2. We decide to implement a fiscal addition, using a fiscal year funding not present in instructional buildings. year funding cycle for schools and cycle will align universal service Thus, the installation of internal wiring libraries, and to transition to this contribution levels with the local might be completed in stages during approach immediately, for several exchange carrier annual access tariff winter and summer vacation periods. reasons. The immediate transition to a filing schedule. Under our rules, local Accordingly, we amend § 54.507(b) of fiscal year approach will ameliorate the exchange carriers file their annual tariffs our rules. concerns of applicants seeking support to be effective July 1 of each year. One 7. The transition to a fiscal year for internal connections that they will piece of information these companies funding cycle adopted herein requires be unable to complete installation require in order to file their tariffs is the that we reconsider on our own motion before December 31, 1998, which marks universal service contribution factors. the limitation on the exemption from the end of the funding year if 4. We recognize that, under the competitive bidding for voluntary determined on a calendar year basis. We approach adopted herein, some schools extensions of contracts. Our rules recognize that, because of the delay in and libraries that did not file within the currently provide that voluntary issuing funding commitments to schools initial window in 1998 will not be extensions of existing contracts are not and libraries, many applicants may not eligible to receive funding until July exempt from the competitive bidding be able to complete by this date the 1999, rather than January 1999. We find, rules. In order to accomplish an orderly internal connections for which they however, that on balance, the benefits transition to the fiscal year funding have sought universal service support. that will be conferred on the cycle, however, we conclude that we The delay may be attributed to a variety approximately 30,000 applicants that must allow existing contracts that have of factors, including the Commission’s filed within the initial window a termination date between December decision to implement an initial filing outweigh the hardship caused by the 31, 1998 and June 30, 1999 to be window, and the Chairman’s request to potential six-month delay in funding for voluntarily extended to a date no later SLC to conduct an independent audit some applicants. We also find that this than June 30, 1999. Although voluntary before disbursing any funds, in order to approach strikes the best balance extensions of contracts generally are not protect against waste, fraud, and abuse. between fulfilling the statutory mandate exempt from the competitive bidding In short, the schools and libraries to enhance access to advanced requirement, we adopt this limited support mechanism is being telecommunications and information exception for voluntary extensions of implemented for the first time, and the services for schools and libraries, and contracts up to June 30, 1999. To hold Commission was not fully aware of the fulfilling the statutory principle that otherwise would result in schools and amount of time necessary to establish ‘‘[q]uality services should be available at libraries either having to participate in administrative systems that ensure just, reasonable, and affordable rates.’’ competitive bidding for only a six 5. To accomplish this change, we program integrity and fair and orderly month service period or not being conclude that the following revisions in administration. Applicants could not eligible for support for that six month the funding cycle must be implemented. have anticipated these delays at the time period. We conclude that either result First, for applications filed within the they conducted their technology needs would be both administratively and initial 75-day filing window seeking assessments. Moreover, applicants financially unworkable for schools and discounts on telecommunications understandably have been reluctant to libraries. We find, therefore, that it is in services and Internet access, the begin service or initiate the installation the public interest to amend the Administrator shall make funding exemption (in § 54.511 of our rules) of internal connections before receipt of commitments effective for services from the competitive bidding a funding commitment. Nevertheless, provided no earlier than January 1, requirements, to allow schools and schools and libraries that have worked 1998. These services will be funded at libraries that filed applications within diligently to comply with the the approved monthly level, consistent the 75-day initial filing window to Commission’s requirements should not with the information included on the extend voluntarily, to a date no later be burdened unnecessarily by this school’s or library’s application, through than June 30, 1999, existing contracts delay. To further accommodate schools June 30, 1999. We conclude that this that otherwise would terminate between and libraries affected by the delay in approach is reasonable because December 31, 1998 and June 30, 1999. implementation, we note that discounts telecommunications services and will be available on eligible services Internet access are generally provided at B. Collections During 1998 and the First effective January 1, 1998 or the date regular, monthly intervals and are billed Six Months of 1999 services begin pursuant to the contract, on a monthly, recurring basis. 8. Consistent with section 254 of the whichever is later. Moreover, the 6. Second, for applications filed Act, and the recommendations of the transition to the fiscal year funding within the initial 75-day filing window Federal-State Joint Board on Universal cycle adopted herein will afford seeking discounts on internal Service, we remain committed to applicants that will receive support for connections, the Administrator shall providing support to eligible schools internal connections the flexibility to commit the approved amount of and libraries for telecommunications complete the installation of internal support, but these funds may be utilized services, Internet access, and internal connections through June of 1999. during the remainder of 1998 as well as connections. We share the concerns of 3. Furthermore, adopting a fiscal year during the transition period through commenters that curtailing collections funding cycle will synchronize the June 30, 1999. We conclude that this may have adverse impacts on schools schools and libraries universal service approach is reasonable because, unlike and libraries, particularly the neediest support mechanism with the budgetary telecommunications services and of those entities. We, therefore, remain and planning cycles of most schools and Internet access, internal connections dedicated to providing support in a libraries. This coordination of the generally entail nonrecurring rather manner that targets the most support mechanism with the applicants’ than recurring costs. Moreover, economically disadvantaged schools internal administrative processes will installation of internal connections and libraries. At the same time, we are enable schools and libraries to plan frequently requires that the projects be cognizant of the concerns of many their technology needs in a more timed to occur during periods when legislators that we must balance the efficient and organized manner. In school is out of session and students are need to provide support for schools and 43090 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations libraries against the need to continue to non-profit elementary and secondary the most economically disadvantaged provide support for high cost carriers, school classrooms * * * and libraries.’’ schools and libraries will receive the and to keep telephone rates affordable These collection rates maintain current greatest share of support, consistent throughout the country. We note that, collection rate levels and will not with the discount matrix contained in pursuant to the 1996 Act, the increase interstate telecommunications the Universal Service Order. We seek to Commission has taken significant action carriers’ costs of providing service. provide support to schools, libraries, to implement the universal service Moreover, these collection rate levels and rural health care providers in a provisions of the Act. At the present should ensure that long distance rates, manner that does not require time, the rural, insular, and high cost overall, will continue to decline. On consumers’ rates to rise and without telephone subscribers continue to June 16, 1998, incumbent local causing rate churn. Some commenters receive high cost support at the same exchange carriers will file new access assert that a certain amount of rate level that they have received for years. tariffs with rates to become effective on churn is to be expected in a competitive In addition, one of the first steps in July 1, 1998. Based on preliminary marketplace. That may be true, but we universal service reform was to make information filed by these carriers on remain committed to ensuring that existing high cost support explicit. April 2, 1998, we estimate their total universal service does not exacerbate Moreover, we have expanded the access charge revenues to decline by any rate churn that may already exist in Commission’s low-income programs, approximately $720 million below the marketplace. Excessive and Lifeline Assistance (Lifeline) and current levels, measured on an unnecessary rate churn would be Lifeline Connection Assistance (Link annualized basis at current demand disruptive to consumers, a result we Up). For example, we adopted the Joint levels. The Third Quarter Contribution wish to avoid. Board’s recommendation that Lifeline Factors Public Notice, released by the 13. Numerous commenters take issue service should be provided to low- Common Carrier Bureau upon adoption with the Commission’s proposal to income consumers nationwide, even in of this Order, will produce a reduction revise collections for the schools and states that had not previously in total interexchange carrier payments libraries and rural health care universal participated in Lifeline, and that all of approximately $85 million. Based on service support mechanisms consistent eligible telecommunications carriers this, total interexchange carrier with anticipated reductions in access should be required to provide Lifeline payments for access services and charges. We agree with the Alaska service. The Commission remains universal service contributions should Commission that funding for the new committed, pursuant to section 254, to decrease by approximately $800 million universal service support mechanisms implementing all parts of universal on July 1, 1998. At the same time, based ‘‘must be balanced against potential service. on the estimated demand for support by impact on rates and universal service,’’ 9. We find, therefore, that it is schools and libraries that filed and that is precisely the approach we prudent to begin funding collections for applications during the initial 75-day are adopting. We conclude, therefore, a new mechanism at a reduced level, filing window, these collection rates that a gradual phase-in of the schools, and allow for the possibility of will be sufficient to fully fund requests libraries, and rural health care universal increased collections in the future. We for support for telecommunications service support mechanisms that takes note that this phase-in approach to services, and Internet access, and to advantage, and reflects the timing, of funding is consistent with the decision fully fund requests by the neediest access charge reductions will provide in the Universal Service Order, 62 FR schools and libraries for support for substantial support for eligible services 32862 (June 17, 1997), and with the internal connections. ordered by eligible schools, libraries and initial funding for high cost support 11. We further conclude that we rural health care providers, and at the when the National Exchange Carrier should establish maximum collection same time will avoid disruption to Association (NECA) began its high cost rates for the rural health care support consumers. collection and distribution efforts in mechanism at $25 million for each of 14. Many commenters note that 1986. In providing support for schools, the third and fourth quarters of 1998. schools and libraries have expended libraries, and rural health care These collection rates are consistent substantial resources, in terms of both providers, we strive to ensure a smooth with projected demand and there is no time and money, in applying for transition to the new universal service evidence that eligible health care discounted services, all with the support mechanisms and to minimize providers will require additional expectation that a maximum of $2.25 disruption to consumers. We find that funding this year. Consistent with the billion in funding would be available. our decision to adjust the maximum Universal Service Order, we do not want We share the concern of the U.S. amounts that may be collected or spent the Universal Service Administrative Department of Education and other in 1998 is consistent with these goals. Company (USAC) to collect funds that commenters that schools and libraries 10. We therefore find that we should exceed demand. Because the rural require predictability of funding to not increase the quarterly collection health care support mechanism will facilitate long-range technology amounts at this time with respect to the continue to be funded on a calendar, planning, and that our actions here schools and libraries and rural health rather than a fiscal, year basis, and should not discourage schools and care support mechanisms. We therefore because the mechanism is still in the libraries from seeking universal service conclude that establishing quarterly very early stages, we find that we support. We agree that the submission collection rates for the schools and should not adopt maximum collection of over 30,000 applications libraries support mechanism of $325 rates beyond 1998. Instead, we will demonstrates substantial demand for million for each of the third and fourth evaluate the 1999 collection rates for the universal service support for schools quarters of 1998 and the first and rural health care support mechanism in and libraries, and we applaud the second quarters of 1999 will preserve the future. entities that have worked diligently to the dual statutory mandates to maintain 12. The universal service support comply with our rules. We are troubled affordable rates throughout the country mechanisms will provide substantial by the disruption imposed on schools and to ‘‘enhance * * * access to support to schools, libraries, and health and libraries and we hope to avoid this advanced telecommunications and care providers without imposing situation in the future. At the same time, information services for all public and unnecessary burdens on consumers, and we must be mindful of the effects of the Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43091 schools and libraries and rural health carriers. The 1996 Act also established fee because it provided ‘‘revenue for the care support mechanisms on consumers. that universal service be funded in a government for projects that did not If we were to fund these support competitively neutral manner. To directly benefit the payees or otherwise mechanisms to the full amount of the implement that, we have required that apply to the purposes furthered by the caps adopted in the Universal Service all interstate telecommunications [agreement between the NSF and its Order, there would be negative carriers contribute to universal service contractor].’’ Here, by contrast, consequences for consumers. Congress based on end-user revenues. We universal service contributions are not mandated that universal service has continue to believe that to be a intended to raise general revenue as many components, including support reasonable approach to implementing they are placed in a segregated fund for schools, libraries, and rural health the competitive neutrality requirements dedicated for a specific regulatory care providers, as well as the directive of the Act. Finally, to the extent that the purpose, and, as we have noted to maintain rates at an affordable level. Collection Public Notice noted the previously, all telecommunications We conclude, therefore, that reducing relation between universal service carriers required to contribute benefit the collection rates for the schools and obligations and access charge from the ubiquitous libraries and rural health care support reductions, it was simply to note that telecommunications network that mechanisms during the initial overall the Commission’s actions have universal service makes possible. Even implementation is consistent with the reduced the cost of providing long if this were not the case, Munoz-Flores Act and is the most prudent course to distance service—an issue of significant rejects the proposition that a charge is take at this time. public interest. We note similarly here a tax unless the payees benefit from its 15. Several commenters maintain that that, since passage of the 1996 Act, payment. 18. Finally, we note that the argument revising collections levels for the competition and changes in reciprocal that universal service contributions for schools and libraries and rural health compensation arrangements between the schools and libraries mechanisms care support mechanisms to match CMRS providers and local exchange constitutes an unlawful tax can be and projected reductions in access charges carriers (LECs) have helped provide for has been made with respect to the entire would impose an unreasonable and the lowest wireless prices for consumers in history, despite wireless carriers’ universal service program. This disproportionate burden on CMRS and contributions to universal service. argument proves too much. If that other wireless providers that do not pay 16. The contention in one of the interpretation were correct, the entire access charges, and that such an dissents that universal service universal service program, including approach would not be competitively contributions, at least to the extent used support for service to rural and high neutral. One of the dissenting to provide support for non- cost areas, would constitute an unlawful statements similarly suggests that telecommunications services, constitute tax. This interpretation is incorrect wireless carriers are being an unlawful tax is neither new nor because, as noted above, Congress need disproportionately burdened because correct. As the Commission has found not exercise its taxing powers to fund a they do not pay access charges. We note previously, contributions to the specific government program through first that we are not here adopting our universal service mechanisms do not fees. This is precisely what Congress has proposal in the Collection Public Notice, represent taxes enacted under done with respect to universal service. 63 FR 27542 (May 19, 1998), to increase Congress’s taxing authority. Rather, they 19. We find, therefore, that it serves schools and libraries funding to levels constitute fees enacted pursuant to the public interest to adjust the amounts that match projected reductions in Congress’s Commerce power. We noted that the Commission directed the access charges paid by long-distance previously that the contribution Administrator to collect and spend for carriers. We are instead freezing for the requirements do not violate the the second six months of 1998, as next four quarters the contribution Origination Clause of the Constitution described herein. We amend our levels in place during the second because ‘‘universal service contributions previous decision, and direct USAC to quarter of 1998. Thus, no carrier will are not commingled with government collect only as much as required by experience increased universal service revenues raised through taxes,’’ and demand, but in no event more than $25 obligations as a result of an increase in universal service support mechanisms million per quarter for the third and funding for the schools and libraries therefore are not a ‘‘general welfare fourth quarters of 1998 for the rural support mechanism. Second, we find scheme’’ of the type found by courts to health care universal service support that CMRS and other wireless carriers be taxes. In United States v. Munoz- mechanism. We direct USAC to collect are not disproportionately burdened Flores and elsewhere, the Supreme only as much as required by demand, because they pay universal service Court has held that Congress does not but in no event more than $325 million obligations even though they do not exercise its taxing powers when funds per quarter for the third and fourth benefit from access charge reductions. are raised for a specific government quarters of 1998 and the first and Before passage of the 1996 Act, only program. Universal service second quarters of 1999 to support the interstate long-distance carriers paid for contributions are deposited into a schools and libraries universal service universal service in the interstate specific fund established as part of the support mechanism. We also direct the jurisdiction, either directly or through universal service mechanisms to Rural Health Care Corporation (RHCC) access charges. The 1996 Act, however provide money support for those to commit to applicants no more than changed that by requiring universal mechanisms and therefore do not $100 million for disbursement during service to be supported by all interstate constitute taxes. 1998, and direct SLC to commit to telecommunications carriers, whether or 17. Our conclusion that universal applicants no more than $1.925 billion not they had previously paid access service contributions are not a tax is not for disbursement during 1998 and the charges. The point of the 1996 Act in changed by the citation to Thomas v. first half of 1999. The adoption of these this respect was to end the existing Network Solutions, Inc. There, the court limits on disbursements supersedes any discriminatory treatment of long- found that part of the charge made by prior restrictions on expenditures distance carriers, and impose universal the National Science Foundation’s during 1998. service obligations as well on other contractor for the registration of internet 20. Furthermore, we conclude that the interstate carriers, including CMRS domain names was a tax rather than a carryover of unused funding authority 43092 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations will not apply for the funding period simultaneously. We also conclude that demand for support submitted by January 1, 1998 through June 30, 1999. new rules of priority are necessary to applicants during the filing window. If That is, to the extent that the amounts account for the fact that the support total demand exceeds the total support collected in the funding period January requested by schools and libraries available in that funding year, SLC shall 1, 1998 through June 30, 1999 are less during the initial filing window exceeds take the following steps. SLC shall first than $2.25 billion, the difference will the total authorized support available calculate the demand for not be carried over to subsequent for the funding period January 1, 1998 telecommunications services and funding years. Consistent with the through June 30, 1999. Moreover, there Internet access for all discount phased-in approach to funding for the is the possibility that support requested categories. These services shall receive schools and libraries and rural health by schools and libraries during first priority for the available funding. care support mechanisms that we have subsequent filing windows may exceed SLC shall then calculate the amount of adopted herein, we find it unnecessary the total authorized support available in available funding remaining after to carry over unused funding authority. subsequent funding years. Therefore, we providing support for all requests for To the extent that funds are collected adopt new rules of priority that will telecommunications services and but not disbursed in the funding period operate when a filing window is in Internet access. SLC shall allocate the January 1, 1998 through June 30, 1999, effect. We do not, however, alter the remaining funds to the requests for however, those collected funds would rules of priority for applicants that support for internal connections, be carried over to the next funding request support when a filing window is beginning with the most economically period. Accordingly, we amend not in effect. Although, in this initial 18- disadvantaged schools and libraries, as §§ 54.507(a) and 54.623(a) of our rules. month funding period, only the determined by the schools and libraries applications filed during the initial 75- C. Rules of Priority for the Schools and discount matrix. That is, schools and day filing window will receive support, Libraries and Rural Health Care Support libraries eligible for a 90 percent it is possible that in future funding years Mechanisms discount shall receive first priority for support could be provided for the remaining funds, and those funds 21. Schools and Libraries Support applications filed outside of a filing will be applied to their requests for Mechanism. Upon further window period. internal connections. To the extent that consideration, we find that we must 22. The additional new rules of funds remain, SLC shall next allocate adopt additional new rules of priority to priority described below will equitably funds toward the requests for internal ensure that, when a filing window provide the greatest assurance of connections submitted by schools and period is in effect, support is directed support to the schools and libraries with libraries eligible for an 80 percent toward the most economically the greatest levels of economic discount, then for a 70 percent discount, disadvantaged schools and libraries, as disadvantage while ensuring that all and shall continue committing funds for well as toward those located in rural applicants filing during a window internal connections in the same areas. Consistent with the statute and receive at least some support in the manner to the applicants at each the recommendations of the Joint Board, event that the amounts requested for descending discount level until there we have consistently focused on support submitted during the filing are no funds remaining. ensuring that the services eligible for window exceed the total support universal service support are affordable available in a funding year. Because 24. If the remaining funds are not for all eligible schools and libraries. these rules of priority utilize the sufficient to support all of the funding Under the discount matrix, the most discount matrix, which provides higher requests that comply with the economically disadvantaged schools discounts for schools and libraries in Commission’s rules and eligibility and libraries are eligible for the greatest rural areas, they also equitably provide requirements within a particular levels of discount. For example, schools greater support to schools and libraries discount level, SLC shall divide the with between 75 and 100 percent of in rural areas. These rules, therefore, total amount of remaining support their students eligible for the national further implement the Commission’s available by the amount of support school lunch program are eligible for 90 prior decisions to allocate support for requested within the particular discount percent discounts on all eligible schools and libraries in a manner that level to produce a pro-rata factor. Thus, services. In the Universal Service Order, provides higher levels of support for for example, if all applicants eligible for we established a priority system under rural areas and areas with greater discounts of 90 percent may be fully which the most economically economic disadvantage, while funded, but there are not sufficient disadvantaged schools and libraries, recognizing that every eligible school funds remaining to fully fund internal those with over 50 percent of their and library should receive some connections for applicants eligible for student populations eligible for the assistance. Further, these rules of discounts of 80 percent, SLC shall national school lunch program, would priority are consistent with the reduce the support level for each have priority when only $250 million is suggestions of several commenters. applicant that is eligible for an 80 available to be committed in a given Upon further consideration, we percent discount by multiplying the funding year. The rules of priority conclude that these new rules of priority appropriate requested amount of adopted in the Universal Service Order, will best promote the universal service support by the pro-rata factor. SLC shall however, were premised on the goals of the Communications Act. then allocate funds to each applicant assumption that support would be Accordingly, we amend § 54.507(g) of within the 80 percent discount category distributed on a first come, first served our rules. based on this reduced discount level. basis. That is, the $250 million trigger 23. The additional new rules of SLC shall commit support to all was established before the Commission priority for the schools and libraries applicants consistent with the adopted a window filing period. We universal service support mechanism calculations described herein. We conclude that we must adopt additional shall operate as described herein for expect that, for the initial 18-month new rules of priority premised on the applicants that submit a request for funding period, the collection levels existence of a filing window period support within an established filing established in this Order will enable all during which all applications received window. When the filing window of the applicants eligible for discounts within the window are treated as if filed closes, SLC shall calculate the total of 90 percent to receive full support for Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43093 internal connections, and that at least a instead that we should adopt a pro-rata under the Telecommunications Act of substantial portion, if not all, of the rule that will reduce each applicant’s 1996 and the amendments made by that support requested for internal level of support by an equal amount in Act.’’ We have confirmed with the connections by applicants eligible for the event that demand exceeds the total Office of Management and Budget, discounts of 80 percent will be fund allocated for a given funding year. which is responsible for determining provided. This approach will ensure fairness and whether or not a rule is major, that the 25. In light of our decision to reduce equity to each health care provider amended rules adopted herein are the collection levels for schools and applying for universal service support promulgated under the libraries at this time, we find that our and will not impose an undue Telecommunications Act of 1996 revised method of prioritization is the administrative burden upon either the because they are part of the best way to provide substantial and applicants or the Administrator. If, Commission’s continuing predictable support for schools and however, parties submit specific implementation of section 254 as added libraries. We conclude that, to the extent prioritization methods that can be by the 1996 Act and therefore are non- that we are unable at this time to fund implemented without substantial major rules. Despite the Order’s citation demand fully, the best approach is to expense, administrative burden, or in the ordering paragraphs to other provide full support for recurring complexity, and that ensure equitable provisions of the Communications Act services, and to direct support for distribution of funds as well or better as subsidiary sources of authority, it internal connections to the neediest than the pro-rata rule we adopt herein, could not be clearer that the amended schools and libraries. We agree with we will consider modifying this rules adopted herein implement the commenters who state that it would be approach in the future. 1996 Act because explicit statutory the most economically disadvantaged 28. When the filing window closes, authorization for the universal service schools and libraries that would suffer RHCC shall calculate the total demand mechanism for schools and libraries did the most if internal connections were for support submitted by all eligible not exist prior to addition of section 254 not funded. The data received from the applicants. If the total demand by the 1996 Act. We find that we have applications submitted during the initial submitted during the filing window good cause to take such action, pursuant filing window also support this revision exceeds the total funding available for to the Administrative Procedure Act, in our rules of priority. the funding year, RHCC shall take the because compliance with these 26. Rural Health Care Support following steps. RHCC shall divide the amendments requires preparation only Mechanism. The Commission total funds available for the funding by USAC, SLC, and RHCC, each of concluded in the Universal Service year by the total amount of support which is able to comply with these Order that support for health care requested to produce a pro-rata factor. amendments in a short amount of time. providers should be allocated on a first- RHCC shall multiply the pro-rata factor Compliance with these amendments come, first-served basis. Unlike the by the total amount of support requested does not require preparation by other schools and libraries support by each applicant that has filed during affected entities, such as schools, mechanism, however, the Commission the filing window. RHCC shall then libraries, or health care providers. To did not adopt rules that allocate support commit funds to each applicant the extent that contributors are affected, among health care providers on the consistent with this calculation. For their burdens are lessened. basis of their economic circumstances. example, if at the close of the filing We determine that we should adopt window $125 million has been D. Level of Compensation for Officers rules that will take effect in the event requested in 1998, RHCC would and Employees of the Administrative that the support requested by health calculate the pro-rata factor by dividing Corporations care providers during a filing window $100 million by $125 million to produce 30. We conclude that Congress’s exceeds the total authorized support in a factor of four-fifths (.8). RHCC would intent regarding the level of a funding year. As with the schools and then multiply the total dollar amount compensation for officers and libraries mechanism, our decisions to requested by each applicant by .8 and employees of SLC and RHCC was adjust the maximum collection amounts would commit such reduced dollar clearly stated in both section 2005(c) of during 1998 and to adopt a filing amount to each applicant. We, therefore, the Senate bill and in the Conference window for the rural health care add section 54.623(f) to our rules. Report. The Senate and the House- support mechanism lead us to conclude 29. We conclude that the amendments Senate conferees expressly stated that that we should establish rules to to our rules adopted herein shall be there should be limits on the level of allocate funds in the event that all of the effective upon publication in the compensation afforded to the officers available funds will be requested before Federal Register. Prior to their and employees of the two independent the window period closes. Several publication in the Federal Register, the corporations. We conclude, therefore, commenters suggested various means by Commission will submit a report on the consistent with the will of Congress, which to prioritize the need of health amended rules adopted herein to that, effective July 1, 1998, the care providers. We conclude, however, Congress and the GAO, as required by administrator must, as a condition of its that the complexity of the proposals the Contract with America continued service, compensate all outweighs their utility. We are not Advancement Act (CWAAA). Pursuant officers and employees of SLC and convinced that the administrative to the CWAAA, the amended rules may RHCC at an annual rate of pay, burden and the costs associated with take effect following that submission. including any non-regular payments, any of the proposals outweighs the Contrary to the suggestion in bonuses, or other compensation, that benefits that would accrue to health care Commissioner Furchtgott-Roth’s does not exceed the rate of basic pay in providers. dissent, the CWAAA does not require effect for Level I of the Executive 27. We conclude, therefore, that we that the Commission wait 60 days after Schedule under section 5312 of Title 5 should not adopt, at this time, a method this submission is made for the rules to of the United States Code. This level of by which to prioritize health care go into effect. Such a delay in the compensation will apply to all officers providers in the event that demand effective date is required only for major and employees of SLC and RHCC, as requested during a filing window rules, and by definition ‘‘major rules’’ currently organized, as well as to all exceeds available support. We conclude do ‘‘not include any rule promulgated such officers and employees in the 43094 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations consolidated administrative corporation Board’s Recommended Decision in developing an economic model that will following reorganization on July 1, which the Joint Board unanimously assist us in determining the level of high 1998. Accordingly, we amend section recommended that universal service cost support due to carriers in a way 69.620(a) of our rules. support be provided to schools and that produces neither a windfall for libraries for internal connections. carriers at the expense of consumers nor E. Publications of Quarterly Similarly, as noted above, the a spike in local telephone rates. We are Contribution Factors in the Federal Commission previously has established confident that in this manner we will Register that universal service contributions do fulfill Congress’s goals embodied in 31. The existing rule has caused some not constitute an unlawful tax. section 254. These actions demonstrate confusion because it requires 34. One of the dissenting statements the Commission’s firm commitment to publication of the proposed also remarks on proposed regulation of implementing all parts of universal contribution factors in the Federal carriers’ billing practices. We are indeed service. We look forward to working Register, but at the same time states that concerned that, when the Commission with Congress, the States, the industry, those proposed factors will become takes action to reduce carriers’ costs of consumers, and our dissenting effective within 14 days of the date on providing service, carriers’ bills are colleagues, as we move forward in which the Public Notice is released. creating the false impression that the achieving this goal. Because an item is not published in the opposite is true. We note that these Federal Register immediately upon matters are not pending before the II. Supplemental Final Regulatory release, and because it is not possible to Commission, and therefore we do not Flexibility Analysis predict with certainty when an item will find it practical or appropriate to 36. In compliance with the Regulatory be published in the Federal Register, comment in this context on specific Flexibility Act (RFA) and the Initial the existing rule creates uncertainty proposals. We do intend to issue in the Regulatory Flexibility Analysis (IRFA) about the date on which the near future a notice of proposed that accompanied the Collection Public contribution factors are deemed rulemaking seeking comment on issues Notice in the Federal Register, this approved. relating to the manner in which carriers Supplemental Final Regulatory 32. We, therefore, amend our rule to include billing statements regarding Flexibility Analysis (SFRFA) clarify that the proposed contribution charges relating to universal service supplements the Final Regulatory factors will be deemed approved, in the support mechanisms. We intend to use Flexibility Analysis (FRFA) included in absence of further Commission action, that proceeding to develop a complete the Universal Service Order, only to the 14 days after release of the Public Notice record on all the relevant issues, extent that changes to that Order in which they are announced. We including those raised by our dissenting adopted here on reconsideration require conclude that the public is given colleague. Only then, after full changes in the conclusions reached in adequate notice of release of the consideration, would the Commission the FRFA. As required by section 603 proposed contribution factors because be able to determine whether it is RFA, 5 USC 603, the FRFA was they are posted on the Commission’s necessary and appropriate to take any preceded by an Initial Regulatory website immediately upon release. action on these issues, and if so, what Flexibility Analysis (IRFA) incorporated Moreover, this change will eliminate action should be taken. Although we in the Notice of Proposed Rulemaking any ambiguity in the rules and will remain committed to ensure that and Order Establishing the Joint Board create certainty about when the carriers include complete and truthful (NPRM), and an IRFA, prepared in proposed contribution factors are information regarding the contribution connection with the Recommended deemed approved. Accordingly, we amount, we await further consideration Decision, which sought written public amend section 54.709(a)(3) of our rules. of these matters. comment on the proposals in the NPRM and the Recommended Decision. F. Conclusion 35. Finally, our dissenting colleagues suggest that the Commission has not A. Need for and Objectives of This 33. In conclusion, we note that our acted to fulfill the Act’s requirements Report and Order and the Rules colleagues’ statements dissenting from regarding support for high cost carriers Adopted Herein this Order raise several issues that are and low-income consumers. Pursuant to well beyond the scope of this Order. the 1996 Act, the Commission has taken 37. The Commission is required by Although we believe it would be significant action to implement the section 254 of the Act to promulgate inappropriate to include here a point- universal service provisions of the Act. rules to implement promptly the by-point analysis of issues that are not As we noted earlier, rural, insular, and universal service provisions of section presented in the matters before the high cost telephone subscribers 254. On May 8, 1997, the Commission Commission in this Order, we do not continue to receive high cost support at adopted rules whose principle goal is to wish our silence to be construed as the same level that they have received reform our system of universal service acquiescence. We are, therefore, for years. In addition, one of the first support mechanisms so that universal compelled to note that several of the steps in universal service reform was to service is preserved and advanced as issues raised in dissent have been make existing high cost support explicit. markets move toward competition. In addressed at length in the context of With respect to low-income consumers, this Order, we reconsider five aspects of prior Commission orders, after due we substantially expanded the reach of those rules. First, to ameliorate the consideration and based on complete the Commission’s Lifeline and Link Up concerns of applicants seeking support records. For example, although one of programs. We are considering petitions for internal connections that they will the dissenting statements questions the for reconsideration of some aspects of be unable to complete installation legal basis for providing support to our actions, as well as requests from the before December 31, 1998, we schools and libraries for internal Joint Board that we refer some issues to reconsider, on our own motion, the connections, the legal basis for that it, including the so-called ‘‘25/75’’ issue. funding cycle for schools and libraries. decision was thoroughly established in We believe that a second referral to the We conclude that it is in the public both the Universal Service Order and Joint Board, if clearly defined in terms interest to change the funding year for the April 10, 1998 Report to Congress. of issues and timing, could be extremely the schools and libraries universal It was further addressed in the Joint valuable. We are also actively service support mechanism from a Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43095 calendar year cycle to a fiscal year cycle Notice, although some commenters budgetary and planning cycles of most running from July 1 to June 30. urged the Commission to modify the schools and libraries; and (3) it will Moreover, this change to a fiscal year rules of priority to ensure that align universal service contribution funding cycle will synchronize the applicants in all states, including small levels with projected reductions in schools and libraries universal service applicants, would receive some access charges. These changes will not support mechanism with the budgetary opportunity to receive funding. In have a significant impact on the and planning cycles of most schools and response to the Collection Public Notice, reporting, recordkeeping, and other libraries and will align universal service some commenters urged the compliance requirements for the schools contribution levels with projected Commission to ensure that schools and and libraries and rural health care reductions in access charges. Second, in libraries that filed applications within universal service support mechanisms. order to reduce financial burdens on all the initial 75-day filing window are 42. In addition, we do not revise the contributors to universal service, we fully funded, and to ensure that schools annual caps adopted in the Universal reconsider, on our own motion, the and libraries have a predictable level of Service Order, but we do adjust the amounts that will be collected during funding. Other commenters disagreed maximum amounts that may be the second six months of 1998 and the with the Commission’s proposal to link collected and spent during the initial first six months of 1999 for the schools access charge reductions with universal eighteen months of implementation for and libraries support mechanism, and service funding for schools, libraries, the schools and libraries support the amounts that will be collected and rural health care providers. mechanism and during the initial year during the second six months of 1998 C. Description and Estimates of the of implementation for the rural health for the rural health care support Number of Small Entities to Which the care provider support mechanism. The mechanism. Third, we modify the rules Rules Adopted in This Report and Order Administrator is instructed to collect of priority for the schools and libraries Will Apply only as much as required by demand, mechanism to provide for the greatest but in no event more than $25 million 39. In the FRFA at paragraphs 890– assurance of support to schools and per quarter for the third and fourth 925 of the Universal Service Order, we libraries with the greatest levels of quarters of 1998 to support the rural described and estimated the number of economic disadvantage while ensuring health care universal service support small entities that would be affected by that all applicants filing during a filing mechanism and no more than $325 the new universal service rules. The window period receive at least some million per quarter for the third and rules adopted herein may apply to the support in the event that the amounts fourth quarters of 1998 and the first and requested for support submitted during same entities affected by the universal service rules. We therefore incorporate second quarters of 1999 to support the the filing window exceed the total schools and libraries universal service support available in a funding year. In by reference paragraphs 890–925 of the Universal Service Order. support mechanism. We also direct the addition, we adopt a rule to pro-rate the Administrator neither to commit nor distribution of support to health care D. Summary Analysis of the Projected disburse more than $100 million for the providers if demand by health care Reporting, Recordkeeping, and Other rural health care support mechanism for providers exceeds the total support Compliance Requirements and 1998 and no more than $1.925 billion allocated for a given funding year. Significant Alternatives for the schools and libraries support Fourth, we conclude, consistent with mechanism for the eighteen month the will of Congress, that the universal 40. In the FRFA to the Universal period from January 1, 1998 through service administrator must, as a Service Order, we described the June 30, 1999. These changes will not condition of continued service, projected reporting, recordkeeping, and have a significant impact on the compensate all officers and employees other compliance requirements and reporting, recordkeeping, and other of SLC and RHCC at an annual rate of significant alternatives associated with compliance requirements for the schools pay, including any non-regular the Schools and Libraries section, the and libraries and rural health care payments, bonuses, or other Rural Health Care Provider section, and universal service support mechanisms. compensation, that does not exceed the the Administration section of the rate of basic pay in effect for Level I of Universal Service Order. Because the 43. In addition, we modify the rules the Executive Schedule under section rules adopted herein may only affect of priority for the schools and libraries 5312 of Title 5 of the United States those requirements in a marginal way, support mechanism to equitably provide Code, effective July 1, 1998. Fifth, we we incorporate by reference paragraphs the greatest assurance of support to the amend our rule regarding publication of 956–60, 968–71, and 980 of the schools and libraries with the greatest the proposed universal service Universal Service Order, which describe level of economic disadvantage while contribution factors to state that the those requirements and provide the ensuring that all applicants filing during proposed contribution factors will be following analysis of the new a filing window period receive at least deemed approved, in the absence of requirements adopted herein. some support in the event that the further Commission action, 14 days after 41. Under the rules adopted herein, amounts requested for support release of the Public Notice in which we revise the funding year for the submitted during the filing window they are announced. We conclude that schools and libraries support exceed the total support available in a this rule change will eliminate mechanism from a calendar year cycle funding year. We also adopt a rule to ambiguity regarding publication (January 1—December 31) to a fiscal pro-rate the distribution of support to requirements currently existing in our year cycle (July 1—June 30). This health care providers if demand by rules. revision will benefit schools and health care providers exceeds the total libraries in three ways: (1) it will fund allocated for a given funding year. B. Summary and Analysis of the ameliorate the concerns of applicants These changes will not have a Significant Issues Raised by Public seeking support for internal connections significant impact on the reporting, Comments in Response to the IRFA that they will be unable to complete recordkeeping, and other compliance 38. No entities commented directly in installation before December 31, 1998; requirements for the schools and response to either the September 10 (2) it will synchronize the schools and libraries and rural health care universal Public Notice or the Collection Public libraries support mechanism with the service support mechanisms. 43096 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations

44. Moreover, consistent with the will find, however, that on balance, the sections 1–4, 201–205, 218–220, 254, of Congress, we conclude that the benefits that will be conferred on the 303(r), 403, and 405 of the universal service Administrator must, as approximately 30,000 applicants that Communications Act of 1934, as a condition of continued service, filed within the initial window amended, 47 USC 151–154, 201–205, compensate all officers and employees outweigh this potential six-month delay 218–220, 254, 303(r), 403, and 405, of SLC and RHCC at an annual rate of in funding for some applicants. We also section 1.108 of the Commission’s rules, pay, including any non-regular find that this approach strikes the best 47 CFR 1.108, the Fifth Order on payments, bonuses, or other balance between fulfilling the statutory Reconsideration in CC Docket No. 96–45 compensation, that does not exceed the mandate to enhance access to advanced is adopted. rate of basic pay in effect for Level I of telecommunications and information 50. It is further ordered that, pursuant the Executive Schedule under section services for schools and libraries, and to the authority contained in sections 1– 5312 of Title 5 of the United States fulfilling the statutory principle of 4, 201–205, 218–220, 254, 303(r), 403, Code, effective July 1, 1998. We also providing quality services at ‘‘just, and 405 of the Communications Act of amend our rule regarding publication of reasonable, and affordable rates,’’ 1934, as amended, 47 USC 151–154, the proposed universal service without imposing unnecessary burdens 201–205, 218–220, 254, 303(r), 403, and contribution factors to state that the on schools and libraries or service 405, section 1.108 of the Commission’s proposed contribution factors will be providers, including small entities. rules, 47 CFR 1.108, the Fourth Report deemed approved, in the absence of 47. As described above, we adopt the and Order in CC Docket No. 96–45 is further Commission action, 14 days after decision to adjust the amount of money adopted. release of the Public Notice in which to be collected in 1998 and the first and 51. It is further ordered that, pursuant they are announced. Neither of these second quarters of 1999 for the schools to the authority contained in sections 1– changes will have a significant impact and libraries universal service support 4, 201–205, 218–220, 254, 303(r), 403, on the reporting, recordkeeping, and mechanism and in 1998 for the rural and 405 of the Communications Act of other compliance requirements for the health care support mechanism because 1934, as amended, 47 USC 151–154, schools and libraries and rural health we do not want to impose unnecessary 201–205, 218–220, 254, 303(r), 403, and care universal service support financial requirements on service 405, section 1.108 of the Commission’s mechanisms. provider contributors to universal service, including contributors that are rules, 47 CFR 1.108, Part 54 of the E. Steps Taken to Minimize the small entities. We find that our decision Commission’s rules, 47 CFR Part 54, and Significant Economic Impact on a to adjust the maximum collectible Part 69 of the Commission’s rules, 47 Substantial Number of Small Entities, amounts provides substantial support to CFR Part 69, are amended. and Significant Alternatives Considered schools, libraries, and rural health care 52. It is further ordered that, pursuant 45. In the FRFA to the Universal providers without imposing to the authority contained in sections 1– Service Order, we described the steps unnecessary burdens on carriers or 4, 201–205, 218–220, 254, 303(r), 403, taken to minimize the significant subscribers, including small entities. and 405 of the Communications Act of economic impact on a substantial 48. Moreover, our conclusion that the 1934, as amended, 47 USC 151–154, number of small entities consistent with universal service Administrator must, as 201–205, 218–220, 254, 303(r), 403, and stated objectives associated with the a condition of continued service, 405, section 1.108 of the Commission’s Schools and Libraries section, the Rural compensate all officers and employees rules, 47 CFR 1.108, effective July 1, Health Care Provider section, and the of SLC and RHCC at an annual rate of 1998, Universal Service Administrative Administration section of the Universal pay that does not exceed the rate of Company shall compensate all officers Service Order. Because the rules basic pay in effect for Level I of the and employees of Schools and Libraries adopted herein may only affect those Executive Schedule under section 5312 Corporation and Rural Health Care requirements in a marginal way, we of Title 5 of the United States Code, Corporation at an annual rate of pay, incorporate by reference paragraphs effective July 1, 1998 will not have a including any non-regular payments, 961–67, 972–76, and 981–82 of the significant impact on the reporting, bonuses, or other compensation, that Universal Service Order, which describe recordkeeping, and other compliance does not exceed the rate of basic pay in those requirements and provide the requirements for the schools and effect for Level I of the Executive following analysis of the new libraries and rural health care universal Schedule under section 5312 of title 5 requirements adopted herein. service support mechanisms on any of the United States Code. 46. As described above, our decision entities other than SLC and RHCC. For 53. It is further ordered that, because to change to a fiscal year funding cycle those entities, compliance with the the Commission has found good cause, will benefit schools and libraries, as amended rule will have a significant the rule changes are effective August 12, well as their chosen service providers, impact on the level of compensation 1998. who may be small entities, by equitably afforded some of their employees, but 54. It is further ordered that the providing the greatest assurance of we conclude that this decision is Commission’s Office of Public Affairs, support to the schools and libraries with consistent with the intent of Congress. Reference Operations Division, shall the greatest levels of economic Our decision to amend our rule send a copy of this Fifth Order on disadvantage while ensuring that all regarding publication of the proposed Reconsideration and Fourth Report and applicants filing during a window universal service contribution factors Order, including the Final Regulatory receive at least some support in the will not have a significant impact on the Flexibility Analysis, to the Chief event that the amounts requested for reporting, recordkeeping, and other Counsel for Advocacy of the Small support submitted during the filing compliance requirements for the schools Business Administration. window exceed the total support and libraries and rural health care available in a funding year. Some universal service support mechanisms. List of Subjects schools and libraries that did not file 47 CFR Part 54 within the initial window in 1998 will III. Ordering Clauses not be eligible to receive funding until 49. Accordingly, it is ordered that, Healthcare providers, Libraries, July 1999, rather than January 1999. We pursuant to the authority contained in Reporting and recordkeeping Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43097 requirements, Schools, funding period January 1, 1998 through §§ 54.507(g)(1) (i) and (ii), Schools and Telecommunications, Telephone. June 30, 1999. Libraries Corporation shall next allocate (b) Funding year. A funding year for funds toward the requests for internal 47 CFR Part 69 purposes of the schools and libraries connections submitted by schools and Communications common carriers, cap shall be the period July 1 through libraries eligible for an 80 percent Reporting and recordkeeping June 30. For the initiation of the discount, then for a 70 percent discount, requirements, Telephone. mechanism only, the eighteen month and shall continue committing funds for Federal Communications Commission period from January 1, 1998 to June 30, internal connections in the same 1999 shall be considered a funding year. Magalie Roman Salas, manner to the applicants at each Schools and libraries filing applications Secretary. descending discount level until there within the initial 75-day filing window are no funds remaining. Rule Changes shall receive funding for requested (iv) If the remaining funds are not services through June 30, 1999. Parts 54 and 69 of Title 47 of the Code sufficient to support all of the funding of Federal Regulations are amended as * * * * * requests within a particular discount follows: (g) Rules of priority. Schools and level, Schools and Libraries Corporation Libraries Corporation shall act in shall divide the total amount of PART 54ÐUNIVERSAL SERVICE accordance with paragraph (g)(1) of this remaining support available by the section with respect to applicants that amount of support requested within the 1. The authority citation for part 54 file a Form 471, as described in particular discount level to produce a continues to read as follows: § 54.504(c) of this part, when a filing pro-rata factor. Schools and Libraries Authority: 47 U.S.C. Secs. 1, 4(i), 201, 205, period described in paragraph (c) of this Corporation shall reduce the support 214, and 254 unless otherwise noted. section is in effect. Schools and level for each applicant within the Libraries Corporation shall act in 2. Section 54.507 is amended by particular discount level, by multiplying accordance with paragraph (g)(2) of this each applicant’s requested amount of revising paragraphs (a), (b) and (g) to section with respect to applicants that read as follows: support by the pro-rata factor. file a Form 471, as described in (v) Schools and Libraries Corporation § 54.507 Cap. § 54.504(c) of this part, at all times other shall commit funds to all applicants (a) Amount of the annual cap. The than within a filing period described in consistent with the calculations annual cap on federal universal service paragraph (c) of this section. described herein. (1) When the filing period described support for schools and libraries shall (2) When a filing period described in in paragraph (c) of this section closes, be $2.25 billion per funding year, and paragraph (c) of this section is not in Schools and Libraries Corporation shall all funding authority for a given funding effect, and when expenditures in any calculate the total demand for support year that is unused in that funding year funding year reach the level where only submitted by applicants during the shall be carried forward into subsequent $250 million remains before the cap will filing period. If total demand exceeds funding years for use in accordance be reached, funds shall be distributed in the total support available for that accordance with the following rules of with demand, with the following funding year, Schools and Libraries exceptions: priority: Corporation shall take the following 3. Section 54.511 is amended by (1) No more than $625 million shall steps: be collected or spent for the funding revising paragraph (d) to read as (i) Schools and Libraries Corporation follows: period from January 1, 1998 through shall first calculate the demand for June 30, 1998. No more than $325 telecommunications services and § 54.511 Ordering services. million shall be collected for the Internet access for all discount * * * * * funding period from July 1, 1998 categories, as determined by the schools (d) The exemption from the through September 30, 1998. No more and libraries discount matrix in competitive bid requirements set forth than $325 million shall be collected for § 54.505(c) of this part. These services in paragraph (c) of this section shall not the funding period from October 1, 1998 shall receive first priority for the apply to voluntary extensions of through December 31, 1998. No more available funding. existing contracts, with the exception than $325 million shall be collected for (ii) Schools and Libraries Corporation that an eligible school or library as the funding period from January 1, 1999 shall then calculate the amount of defined under § 54.501 or consortium through March 31, 1999. No more than available funding remaining after that includes an eligible school or $325 million shall be collected for the providing support for all library, that filed an application within funding period from April 1, 1999 telecommunications services and the 75-day initial filing window through June 30, 1999. No more than Internet access for all discount (January 30, 1998–April 15, 1998) may $1.925 billion shall be collected or categories. Schools and Libraries voluntarily extend, to a date no later disbursed during the eighteen month Corporation shall allocate the remaining than June 30, 1999, an existing contract period from January 1, 1998 through funds to the requests for support for that otherwise would terminate between June 30, 1999. internal connections, beginning with the December 31, 1998 and June 30, 1999. (2) The carryover of unused funding most economically disadvantaged 4. Section 54.623 is amended by authority will not apply for the funding schools and libraries, as determined by revising paragraph (a) and adding period January 1, 1998 through June 30, the schools and libraries discount paragraph (f) to read as follows: 1999. To the extent that the amounts matrix in § 54.505(c) of this part. collected in the funding period January Schools and libraries eligible for a 90 § 54.623 Cap. 1, 1998 through June 30, 1999 are less percent discount shall receive first (a) Amount of the annual cap. The than $2.25 billion, the difference will priority for the remaining funds, and annual cap on federal universal service not be carried over to subsequent those funds will be applied to their support for health care providers shall funding years. Carryover of funds will requests for internal connections. be $400 million per funding year, with occur only to the extent that funds are (iii) To the extent that funds remain the following exceptions. No more than collected but not disbursed in the after the allocation described in $50 million shall be collected for the 43098 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations funding period from January 1, 1998 Administrator and the Schools and and operations personnel, the costs of through June 30, 1998. No more than Libraries and Rural Health Care borrowing funds, equipment costs, $25 million shall be collected for the Corporations must submit their operating expenses, directors’ expenses, funding period from July 1, 1998 projections of administrative expenses and costs associated with auditing through September 30, 1998. No more for the high cost and low-income contributors of support recipients. than $25 million shall be collected for programs, the schools and libraries (1) All officers and employees of the the funding period from October 1, 1998 program and the rural health care independent subsidiary, Schools and through December 31, 1998. No more program, respectively, and the basis for Libraries Corporation and Rural Health than $100 million shall be committed or those projections to the Commission Care Corporation, may be compensated disbursed for the 1998 funding year. and the Common Carrier Bureau at least at an annual rate of pay, including any * * * * * 60 calendar days prior to the start of that non-regular payments, bonuses, or other (f) Pro-rata reductions. Rural Health quarter. Based on data submitted to the compensation, in an amount not to Care Corporation shall act in accordance Administrator on the Universal Service exceed the rate of basic pay in effect for with this paragraph when a filing period Worksheets, the Administrator must Level I of the Executive Schedule under described in paragraph (c) of this submit the total contribution bases to section 5312 of title 5 of the United section is in effect. When a filing period the Common Carrier Bureau at least 60 States Code. described in paragraph (c) of this days before the start of each quarter. The (2) The level of compensation section closes, Rural Health Care projections of demand and described in § 69.620(a)(1) shall be Corporation shall calculate the total administrative expenses and the effective July 1, 1998. demand for support submitted by all contribution factors shall be announced * * * * * applicants during the filing window. If by the Commission in a public notice [FR Doc. 98–21588 Filed 8–11–98; 8:45 am] the total demand exceeds the total and shall be made available on the BILLING CODE 6712±01±P support available for the funding year, Commission’s website. The Commission Rural Health Care Corporation shall take reserves the right to set projections of the following steps: demand and administrative expenses at FEDERAL COMMUNICATIONS (1) Rural Health Care Corporation amounts that the Commission COMMISSION shall divide the total funds available for determines will serve the public interest the funding year by the total amount of at any time within the 14-day period 47 CFR Part 73 support requested to produce a pro-rata following release of the Commission’s [MM Docket No. 97±179; RM±9064] factor. public notice. If the Commission takes (2) Rural Health Care Corporation no action within 14 days of the date of Radio Broadcasting Services; Old shall calculate the amount of support release of the public notice announcing Forge and Newport Village, NY requested by each applicant that has the projections of demand and AGENCY: Federal Communications filed during the filing window. administrative expenses, the projections Commission. (3) Rural Health Care Corporation of demand and administrative expenses, shall multiply the pro-rata factor by the and contribution factors shall be ACTION: Final rule. total dollar amount requested by each deemed approved by the Commission. SUMMARY: The Commission, at the applicant. Rural Health Care Once the projections and contribution request of 21st Century Radio Ventures, Corporation shall then commit funds to factors are approved, the Administrator Inc., reallots Channel 259A from Old each applicant consistent with this shall apply the quarterly contribution Forge, NY, to Newport Village, NY, as calculation. factors to determine individual the community’s first local aural 5. Section 54.709 is amended by contributions. service, and modifies petitioner’s revising paragraph (a)(3) to read as * * * * * construction permit (BPH–940203MC) follows: to specify Newport Village as its PART 69ÐACCESS CHARGES § 54.709 Computations of required community of license, and allots contributions to universal service support 6. The authority citation for part 69 Channel 223A to Old Forge as the mechanisms. continues to read as follows: community’s second local FM service. (a) * * * Channel 259A can be allotted to Authority: 47 U.S.C. 154, 201, 202, 203, (3) Total projected expenses for 205, 218, 220, 254, and 403 unless otherwise Newport Village in compliance with the universal service support programs for noted. Commission’s minimum distance each quarter must be approved by the separation requirements with a site Commission before they are used to 7. Section 69.620 is amended by restriction of 10 kilometers (6.2 miles) calculate the quarterly contribution revising paragraph (a) to read as follows: northwest, at coordinates 43–15–43; 75– factors and individual contribution. For § 69.620 Administrative expenses of 05–02, to avoid a short-spacing to each quarter, the High Cost and Low independent subsidiary, Schools and Station WTKW, Channel 258A, Income Committee or the permanent Libraries Corporation, and Rural Health Bridgeport, New York, and Station Administrator once the permanent Care Corporation. WRVE, Channel 258B, Schenectady, Administrator is chosen and the Schools (a) The annual administrative New York. Channel 223A can be and Libraries and Rural Health Care expenses of the independent subsidiary, allotted to Old Forge in compliance Corporations must submit their Schools and Libraries Corporation and with the Commission’s minimum projections of demand for the high cost Rural Health Care Corporation, should distance separation requirements with and low-income programs, the school be commensurate with the regard to all domestic allotments and libraries program, and rural health administrative expenses of programs of without the imposition of a site care program, respectively, and the basis similar size, with the exception of the restriction, at coordinates 43–42–42; 74– for those projections, to the Commission salary levels for officers and employees 58–24, but is short-spaced to Station and the Common Carrier Bureau at least of the corporations. The annual KFQR–FM, Channel 223C1, Montreal, 60 calendar days prior to the start of that administrative expenses may include, Quebec, Canada. Canadian concurrence quarter. For each quarter, the but are not limited to, salaries of officers in both allotments has been received Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43099 since both communities are located NATIONAL AERONAUTICS AND PART 1805ÐPUBLICIZING CONTRACT within 320 kilometers (200 miles) of the SPACE ADMINISTRATION ACTIONS U.S.-Canadian border. The Old Forge allotment has been concurred in as a 48 CFR Parts 1805, 1822, and 1844 § 1805.303±71 [Amended] specially negotiated short-spaced 2. In subpart 1805.303–71, the second Administrative Revisions to the NASA sentence of the introductory text in allotment. See 62 FR 44435, August 21, FAR Supplement 1997, 63 FR 19701, April 21, 1998. With paragraph (b) is amended by deleting the reference ‘‘(202–358–2080)’’. this action, this proceeding is AGENCY: National Aeronautics and terminated. Space Administration (NASA). PART 1822ÐAPPLICATION OF LABOR ACTION: Final rule. DATES: Effective September 21, 1998. A LAWS TO GOVERNMENT filing window for Channel 223A at Old SUMMARY: This is a final rule to amend ACQUISITION Forge, NY, will not be opened at this the NASA FAR Supplement (NFS) to time. Instead, the issue of opening a make minor editorial changes to the title Subpart 1822.14 [Amended] filing window for this channel will be of Subpart 1822.14, and in Part 1844, 3. In subpart 1822.14, the subpart addressed by the Commission in a Subcontracting Policies and Procedures. heading ‘‘Employment of the subsequent order. These changes result from revisions to Handicapped’’ is revised to read these references in Federal Acquisition ‘‘Employment of Workers with FOR FURTHER INFORMATION CONTACT: Circular 97–05, and include new section Disabilities’’. Leslie K. Shapiro, Mass Media Bureau, titles and numbering. In addition, an (202) 418–2180. editorial change is made to Subpart PART 1844ÐSUBCONTRACTING SUPPLEMENTARY INFORMATION: This is a 1805.3 to correct a reference to an POLICIES AND PROCEDURES obsolete telephone number. synopsis of the Commission’s Report 1844.201, 1844.201±1 [Revised] EFFECTIVE DATE: August 12, 1998. and Order, MM Docket No. 97–179, 4. Section 1844.201 and 1844.201–1 FOR FURTHER INFORMATION CONTACT: adopted July 29, 1998, and released are revised to read as follows: August 7, 1998. The full text of this James H. Dolvin, NASA, Office of Commission decision is available for Procurement, Contract Management 1844.201 Consent and advance inspection and copying during normal Division (Code HK), (202) 358–1279. notification requirements. SUPPLEMENTARY INFORMATION: business hours in the FCC Reference 1844.201±1 Consent requirements. (NASA Center (Room 239), 1919 M Street, NW., Background supplements paragraph (a)) Washington, DC. The complete text of Federal Acquisition Circular 97–05, (a)(i) In determining special this decision may also be purchased published in the Federal Register on surveillance consent requirements, the from the Commission’s copy contractor, June 22, 1998, contained several contracting officer should consider International Transcription Services, changes in section titles and numbering specific subcontract awards, as well as Inc., (202) 857–3800, 1231 20th Street, which required changes in the NFS to any individual systems, subsystems, NW, Washington, DC 20036. maintain its consistency with the FAR. components, technologies, and services that should have contracting officer List of Subjects in 47 CFR Part 73 These changes include: new titles for Sections 1822.14 (Employment of consent prior to being subcontracted. Radio broadcasting. Workers with Disabilities), 1844.201 (ii) For each planned contract award (Consent and Advance Notification expected to exceed $1 million in total Part 73 of Title 47 of the Code of Requirements), and 1844.201–1 estimated value (inclusive of options), Federal Regulations is amended as (Consent Requirements); and relocating the contracting officer should consider follows: the present language in Section such factors as the following to determine whether certain subcontracts PART 73Ð[AMENDED] 1844.201–2 to new Section 1844.201–1. Another administrative change is made require special surveillance: (A) The degree of subcontract pricing to delete an outdated telephone number 1. The authority citation for Part 73 uncertainties at the time of contract from section 1805.303–71. continues to read as follows: award; Authority: 47 U.S.C. 154, 303, 334. 336. Impact (B) The overall quality of the This rule does not constitute a contractor’s approach to pricing § 73.202 [Amended] significant FAR revision within the subcontracts; (C) The extent of competition meaning of FAR 1.501 and Pub. L. 98– 2. Section 73.202(b), the Table of FM achieved, or to be achieved, by the 577, and publication for public Allotments under New York, is contractor in the award of subcontracts; comment is not required. amended by adding Newport Village, (D) Technical complexity and the Channel 259A, and by removing List of Subjects in 48 CFR Parts 1805, criticality of specific supplies, services, Channel 259A and adding Channel 1822, and 1844 and technologies on the successful 223A at Old Forge. Government procurement. performance of the contract; and (E) The potential impact of planned Federal Communications Commission. Tom Luedtke, subcontracts on source selection or John A. Karousos, Deputy Associate Administrator for incentive arrangements. Chief, Allocations Branch, Policy and Rules Procurement. (iii) The contracting officer shall Division, Mass Media Bureau. Accordingly, 48 CFR Parts 1805, 1822, document results of the review in the [FR Doc. 98–21586 Filed 8–11–98; 8:45 am] and 1844 are amended as follows: contract file. For contract modifications BILLING CODE 6712±01±P 1. The authority citation for 48 CFR and change orders, the contracting Parts 1805, 1822, and 1844 continues to officer shall make the determination read as follows: required by paragraph (a)(ii) of this Authority: 42 U.S.C. 2473(c)(1). section whenever the value of any 43100 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations subcontract resulting from the change numbers of populations or individuals. forests on the Monterey Peninsula as the order or modification is proposed to This rule implements the Federal ‘‘most important silva ever,’’ and exceed $100,000 or is one of a number protection and recovery provisions encouraged Samuel F.B. Morse of the of subcontracts with a single afforded by the Act for these plant taxa. Del Monte Properties Company to subcontractor for the same or related A notice of withdrawal of the proposal explore the possibilities of preserving supplies or services that are expected to list the black legless lizard (Anniella the unique forest communities. Morse cumulatively to exceed $100,000. pulchra nigra), which was proposed for believed that developing recreational (iv) In addition, any subcontract listing along with the five plant taxa facilities would allow income to be under a cost type prime contract shall considered in this rule, is published derived from the property while be identified for special surveillance if concurrently with this rule. maintaining the forest intact (Larkey consent was not provided at the time of DATES: This rule is effective September 1972). contract award and cost or pricing data 11, 1998. Maps compiled by the U.S. Forest Service (FS) to show plant associations would be required in accordance with ADDRESSES: The complete file for this FAR 15.404–3(c). rule is available for inspection, by that were similar in ‘‘fire-hazard characteristics and in uses or qualities appointment, during normal business 1844.201±2 [Removed] of economic importance’’ portray the hours at the U.S. Fish and Wildlife 5. Section 1844.201–2 is removed. bulk of the Monterey Peninsula as Service, 2493 Portola Road, Suite B, Monterey pine (Pinus radiata) forest [FR Doc. 98–21617 Filed 8–11–98; 8:45 am] Ventura, California, 93003. BILLING CODE 7510±01±P with a discrete stand of Bishop pine FOR FURTHER INFORMATION CONTACT: Carl (Pinus muricata) in the center of the Benz, Assistant Field Supervisor, Peninsula (FS 1941). The coastline was Ventura Fish and Wildlife Office (see DEPARTMENT OF THE INTERIOR fringed with either ‘‘barren’’ stretches, ADDRESSES section) (telephone grassland, or ‘‘sagebrush,’’ and a stretch number 805/644–1766; facsimile 805/ Fish and Wildlife Service of ‘‘cypress species’’ extending east 644–3958). along the coast from what is known as 50 CFR Part 17 SUPPLEMENTARY INFORMATION: Cypress Point. By 1930, however, the construction of three golf courses likely RIN 1018±AD09 Background resulted in the removal of some stands The Monterey Peninsula on the of Monterey pines. Endangered and Threatened Wildlife central California coast has been noted and Plants; Final Rule Listing Five Only three native Monterey pine for a high degree of species endemism stands remain in California, one on the Plants From Monterey County, CA, as (Axelrod 1982, Howitt 1972). Species Endangered or Threatened Monterey Peninsula, a second near An˜ o with more northern affinities reach their Nuevo Point in northern Santa Cruz and AGENCY: Fish and Wildlife Service, southern limits on the Peninsula; southern San Mateo counties, and a Interior. species with more southern affinities third near Cambria, in San Luis Obispo ACTION: Final rule. reach their northern limits there as well County. The Monterey Peninsula stand (Howitt and Howell 1964). The is not only the most extensive of the SUMMARY: The U.S. Fish and Wildlife Monterey Peninsula is influenced by a three, it is also unique in its association Service (Service) determines maritime climate that is even more with Pinus muricata, Cupressus endangered status pursuant to the pronounced due to the upwelling of goveniana ssp. goveniana (Gowen Endangered Species Act of 1973, as cool water from the Monterey cypress), and Cupressus macrocarpa amended (Act), for four plants: submarine canyon. Rainfall amounts to (Monterey cypress). While P. radiata Astragalus tener var. titi (coastal dunes only 38 to 51 centimeters (cm) (15 to 20 grows well on a variety of soils, it does milk-vetch), Piperia yadonii (Yadon’s inches (in)) per year, but summer fog- not do well on the acidic, poorly- piperia), Potentilla hickmanii drip is a primary source of moisture for drained soils found on Huckleberry Hill (Hickman’s potentilla), and Trifolium plants that would otherwise not be able centrally located on the Monterey trichocalyx (Monterey clover); and to persist with such low rainfall. Some Peninsula (Griffin 1972). Here, the less threatened status for Cupressus taxa, such as the coastal closed-cone aggressive C. goveniana ssp. goveniana goveniana ssp. goveniana (Gowen pines and cypresses are relicts, i.e., and P. muricata are spared competition cypress). The five taxa are found stands of species that once had a more from P. radiata. Some of the chaparral primarily along the coast of northern continuous, widespread distribution in species associated with these forest Monterey County, California, with one the more mesic climate of the late stands include Arctostaphylos hookeri species also occurring in San Mateo Pleistocene period, but then retreated to ssp. hookeri (Hooker’s manzanita), County and historical populations of small pockets of cooler and wetter Arctostaphylos tomentosa var. another occurring in Los Angeles and conditions along the coast ranges during tomentosa (shaggy-barked manzanita), San Diego counties. The five plant taxa the hotter and drier xerothermic period Adenostema fasciculata (chamise), and are threatened by one or more of the between 8,000 and 4,000 years ago Vaccinium ovatum (huckleberry) (Jones following: alteration, destruction, and (Axelrod 1982). and Stokes Assoc. 1994b; Vogl et al. fragmentation of habitat resulting from In 1602, the Spanish government 1988). urban and golf course development; commissioned Sebastian Viscaino to Much of what the FS mapped in 1941 recreational activities; competition with map the coastline; he traveled as far as grassland or ‘‘barren’’ (which most alien species; and disruption of natural north as the Mendocino coast. In his likely included coastal dunes) on the fire cycles due to fire suppression journal, he made note of the ‘‘pine peninsular coastline has been associated with increasing residential covered headlands’’ and the ‘‘great pine subsequently converted to golf courses. development around and within trees, smooth and straight, suitable for Remnant dunes support a coastal dune occupied habitat. Astragalus tener var. the masts and yards of ships’’ that he scrub community and the southernmost titi and Potentilla hickmanii are also saw while anchored in Monterey Bay occurrences for Erysimum menziesii more susceptible to extinction by (Larkey 1972). During the early 1900s, (Menzies wallflower), Lupinus random events due to their small Willis L. Jepson characterized the tidestromii (Tidestrom’s lupine), and Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43101

Gilia tenuiflora ssp. arenaria (dune Angeles locations, since the area has Cupressus goveniana ssp. goveniana gilia), all federally endangered species been heavily urbanized. In San Diego was first collected by Karl Hartweg from (U.S. Fish and Wildlife Service County, the Silver Strand area is owned Huckleberry Hill (Monterey Peninsula) (USFWS) 1992). It is uncertain what by the Department of Defense (Miramar in 1846 (Sargent 1896, Wolf and species characterized the grasslands Naval Weapons Center), and a portion Wagener 1948). The plant was described mapped by the FS. Aside from has been used for amphibious vehicle as Cupressus goveniana by British harboring small populations of several training exercises. Another portion of horticulturalist George Gordon in 1849 of the species that are included in this Silver Strand has been leased by the who named it after fellow final rule, these patches of herbaceous Navy to the California Department of horticulturalist James R. Gowen (Sargent vegetation now support a large number Parks and Recreation (CDPR) for 1896). Sargent (1896) described the tree of alien grasses and succulents (Ferreira development of a campground and as being widely distributed ‘‘from the 1995). As for the patches mapped by the recreational facilities. Numerous plains of Mendocino County to the FS as ‘‘sagebrush,’’ these most likely unsuccessful searches for the plant have mountains of San Diego County’’ as he matched what is currently called coastal been made in these locations since 1980 included taxa now recognized as sage scrub, a community dominated by (Ferreira 1995; Natural Diversity distinct in his definition of C. Artemisia californica (California Database (NDDB) 1997). goveniana. John G. Lemmon published sagebrush). For the most part, these The only known extant population of the name C. goveniana var. pigmaea in patches occurred within what are now Astragalus tener var. titi occurs along 1895 to refer to the stands found on the urbanized portions of the cities of 17-Mile Drive on the western edge of the ‘‘White Plains’’ of Mendocino County, Monterey and Pacific Grove and the Monterey Peninsula on land owned by also referred to as pygmy cypress or Pacific Grove Municipal Golf Course. the Pebble Beach Company and the Mendocino cypress. As a result of this Discussion of the Five Taxa Monterey Peninsula Country Club. segregation, the material from the Colonies of the milk-vetch occur on a Monterey area would be treated as C. Astragalus tener var. titi (coastal relatively flat coastal terrace within 30 goveniana var. goveniana. The taxon is dunes milk-vetch) was first collected by meters (m) (100 feet (ft)) of the ocean currently treated as C. goveniana ssp. Mrs. Joseph Clemens in 1904 along 17- beach and 8 m (25 ft) above sea level. goveniana (Bartel 1993). Mile Drive on the Monterey Peninsula The loamy fine sands that comprise a Cupressus goveniana ssp. goveniana ‘‘near an old hut composed of abalone series of shallow swales on the terrace (Gowen cypress) is a small coniferous shells and coal-oil cans.’’ Alice Eastwood named the plant Astragalus surface support standing water during tree or shrub in the cypress titi in honor of Dr. F. H. Titus (Eastwood wet winter and spring seasons. (Cupressaceae) family. Most of the 10 1905). Subsequently, John Thomas Individual plants are found on the taxa in the genus Cupressus found in Howell (1938), while comparing a bottoms or sides of the swales growing California currently have relatively specimen of A. tener that was collected in association with other low growing small ranges (Vogl et. al. 1988). Of the by David Douglas near Salinas, grasses and herbs, including the alien three coastal cypresses, native stands of Monterey County, remarked that Plantago coronopus (cut-leaf plantain). C. macrocarpa (Monterey cypress) and although ‘‘Astragalus titi Eastwood has In the 1980s and early 1990s, from 15 C. goveniana ssp. goveniana are both generally been regarded as the same as to 1,000 individuals had been counted restricted to the Monterey Peninsula Astragalus tener, ** * the two plants in this population (Ferreira 1995). In and Point Lobos in Monterey County. are not the same and Astragalus titi 1995, four additional colonies of this Cupressus goveniana ssp. goveniana seems worthy of varietal, if not specific taxon were located in similarly moist generally reaches a height between 5 recognition.’’ Rupert Barneby published habitats within 400 m (1,300 ft) of the and 7 m (17 to 23 ft) (Munz 1968), the combination A. tener var. titi in previously known plants. A thorough though Griffin noted one individual that 1950, noting the difference in flower survey of surrounding patches of was 10 m (33 ft) high at Huckleberry size, habitat, and geographic range suitable habitat was made and a total of Hill (Griffin and Critchfield 1976). The between it and A. tener var. tener 4000 individuals were counted in 1995 sparsely branched tree forms a short, (Barneby 1950). in 11 scattered colonies (Jones and broad crown with a spread of 2 to 4 m Astragalus tener var. titi is a Stokes Assoc. 1996). (7 to 13 ft). The bark is smooth brown diminutive annual herb of the pea The 11 colonies are bisected by 17- to gray, but becomes rough and fibrous family (Fabaceae). The slender, slightly Mile Drive, and occur in remnant on old trees. The scale-like foliage is a pubescent stems reach 1 to 2 decimeters patches of habitat that are bounded by light rich green, with leaves 1 to 2 mm (dm) (4 to 8 in) in height; the pinnately roads, golf greens, equestrian trails and long (0.04 to 0.08 in). The female cones compound leaves are 2 to 7 cm (0.8 to a bank covered by the alien plant, are subglobose (nearly spherical), 10 to 2.7 in) long with 7 to 11 leaflets, each Carpobrotus edulis (fig-marigold) 15 mm (to 0.1 in) long, and produce 90 having a slightly bilobed tip. The tiny (Ferreira 1995, Jones and Stokes Assoc. to 110 seeds (Wolf and Wagener 1948). lavender to purple flowers are 5 to 6 1996). Astragalus tener var. titi is The cones, which typically mature in 2 millimeters (mm) (0.3 in) long and are currently threatened with alteration of years, remain closed for many years arranged in subcapitate racemes of 2 to habitat from trampling associated with while attached to the tree. Seeds can be 12 flowers. The seed pods are straight to recreational activities, such as hiking, released upon mechanical removal from sickle-shaped and 7 to 14 mm (0.3 to 0.6 picnicking, ocean viewing, wildlife the tree or, more typically, upon death in) long (Barneby 1964). photography, equestrian use, and of the tree or supporting branch. Two historical locations from Los golfing. Due to the fragmented nature of Cupressus goveniana ssp. goveniana is Angeles County (Hyde Park in its habitat and the human uses that distinguished from its close relative C. Inglewood and Santa Monica) and two surround it, the species is also more goveniana ssp. pigmaea (pygmy or from San Diego County (Silver Strand vulnerable to extinction from random Mendocino cypress) by its much taller and Soledad) were annotated by events. Astragalus tener var. titi may stature, the lack of a long, whip-like Barneby as Astragalus tener var. titi also be threatened by competition from terminal shoot, and light to yellow- (Barneby 1950). It is unlikely that the alien plants, C. edulis and Plantago green rather than dark dull green foliage suitable habitat remains at the Los coronopus. (Bartel 1993). 43102 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations

Like other closed-cone cypresses, 1992). The majority of the remaining At that time, it was identified as Piperia Cupressus goveniana ssp. goveniana is portion of this stand is on lands owned unalascensis, a polymorphic, wide- a fire adapted species. It possesses cones by Pebble Beach Company that are ranging species in the western United which, after seed has matured, remain designated as ‘‘forested open space’’ in States (Morgan and Ackerman 1990), sealed and attached to the trees, the Huckleberry Hill Open Space area, although at least two naturalists who typically until heat from fires breaks the through a conservation easement held collected from the Monterey region in cones’ resinous seal and allows seeds to by the DMFF. Scattered groups of trees the 1920s (George Henry Grinnel and escape. Adequate sunlight and bare that radiate out from this stand are Leroy Abrams) noted the uniqueness of mineral soils are also needed by C. located on Pebble Beach Company lands the plants from the Monterey area goveniana ssp. goveniana for seedling within their most recently proposed (Morgan and Ackerman 1990, Coleman establishment; in areas with herbaceous residential developments (EIP 1995). In a recent treatment of the genus cover seedling mortality is higher due to Associates 1995). Piperia, Ackerman (1977) segregated out fungal infections (Vogl et al. 1988). A second smaller stand of Cupressus several long-spurred taxa from the P. Only two natural stands of Cupressus goveniana ssp. goveniana 16 to 32 ha unalascensis complex, but attempted no goveniana ssp. goveniana are known to (40 to 80 ac) in size occurs 10 km (6 mi) analysis of the short-spurred forms. exist, although individuals can be found to the south at Point Lobos State Reserve Subsequently, Morgan and Ackerman locally in cultivation. Cupressus near Gibson Creek on a 60-ha (150-ac) (1990) segregated out two new taxa from goveniana ssp. goveniana is associated parcel acquired by the CDPR in 1962. the P. unalascensis complex. One of with Pinus radiata, Pinus muricata, and The very western edge of the stand is on these, P. yadonii, was named after several taxa in the heath family lands recently purchased by the Big Sur Vernal Yadon, previous Director of the (Ericaceae) (e.g., Vaccinium, Gaultheria, Land Trust from a private owner. This Museum of Natural History in Pacific Arctostaphylos) on poorly drained, parcel was to be transferred to the CDPR Grove, Monterey County. acidic, soils (Griffin and Critchfield in 1997 (Big Sur Land Trust, in litt. Piperia yadonii is a slender perennial 1976). The largest stand, referred to here 1997). In this stand, C. goveniana ssp. herb in the orchid family (Orchidaceae). as the Del Monte Forest stand, is near goveniana is associated with Pinus Mature plants typically have two or Huckleberry Hill on the western side of radiata and chaparral species (Griffin three lanceolate to oblanceolate basal the Monterey Peninsula. This stand and Critchfield 1976; Vogl et al. 1988). leaves 10 to 15 cm (4 to 6 in) long and covers approximately 40 hectares (ha) Due to the physical inaccessibility of the 2 to 3 cm (0.8 to 1.2 in) wide. The single (100 acres (ac)), with individuals Point Lobos stand and the Reserve’s flowering stems are up to 50 cm (20 in) scattered within a kilometer (km) (0.6 mandate to protect sensitive plant taxa, tall with flowers arranged in a dense mile (mi)) of the main stand. Wolf and the Point Lobos stand exhibits fewer narrow-cylindrical raceme. The flowers Wagener (1948) reported that patches of signs of human disturbance than the Del consist of three petal-like sepals and crowded, poorly developed individuals, Monte Forest stand. three petals (together referred to as referred to as ‘‘canes,’’ were cut for Despite measures taken to protect the tepals). The upper three tepals are green posts, making it difficult to determine Cupressus goveniana ssp. goveniana and white and the lower three white. the original extent of the grove. stand at the Del Monte Forest, such as The lowermost tepal is specialized into At least three fires have burned establishing the Morse Reserve, the a lip that is narrowly triangular and is portions of the Del Monte Forest stand opportunities for maintaining a viable strongly decurved such that the tip in the last 100 years. A large fire burned long-term population of this taxon may nearly touches the spur of the flower most of the stand in 1901 (Coleman be compromised by the site’s proximity (Morgan and Ackerman 1990). Piperia 1905, and Dunning 1906, in Vogl et al. to urbanization. Although the lands on yadonii may occur with P. elegans, P. 1988). The northern portion of the stand which the majority of the remaining elongata, P. michaelii, and P. apparently burned in 1959 (NDDB cypress grow will not be developed, the transversa, but is distinguished from 1997). The most recent fire burned the residential development that is them in flower by its shorter spur south central portion of the population occurring on all sides of the stand length, particular pattern of green and in 1987. In each case, regeneration of C. reduces the opportunity for the white floral markings, and its earlier goveniana ssp. goveniana has occurred. continuation of ecosystem processes, flowering time (Morgan and Ackerman The Del Monte Forest stand is on such as periodic fire, which are needed 1990, Coleman 1995). lands owned by the Pebble Beach for stand regeneration. This species is As in other orchids, germination of P. Company and the Del Monte Forest threatened by habitat alteration due to yadonii seeds probably involves a Foundation (DMFF). The purpose of the the influence of continued urban symbiotic relationship with a fungus. DMFF, originally established as the Del development in Pebble Beach and to the Following germination, orchid seedlings Monte Foundation in 1961 by the disruption of natural fire cycles that are typically grow below ground for one to Pebble Beach Company, is to ‘‘acquire, likely to result from fire suppression several years before producing their first accept, maintain, and manage lands in activities. In addition, stands of basal leaves. Plants may produce only the Del Monte Forest which are Cupressus goveniana var. goveniana at vegetative growth for several years, dedicated to open space and greenbelt’’ both locations have been invaded by before first producing flowers (DMFF, in litt. 1992). A large portion of aggressive alien species, including (Rasmussen 1995). In mature plants of the Del Monte Forest stand is within a Cortaderia jubata (pampasgrass), P. yadonii the basal leaves typically 34-ha (84-ac) area designated as the Genista monspessulana (French broom), emerge sometime after fall or winter Samuel F.B. Morse Botanical Reserve and Erechtites spp. (fireweeds) (Forest rains and wither by May or June, when (Morse Reserve) in the 1960s and Maintenance Standard 1990; K. Gray, the plant produces a single flowering donated to DMFF in 1976. In the early State Parks, pers. comm. 1997). Invasion stem. Allen (1996) has observed that 1980s, development of the Poppy Hills of alien plants alters the composition of only a small percentage of the P. yadonii Golf Course removed 840 trees of C. the plant community and may adversely plants in a population may flower in goveniana ssp. goveniana outside of the affect C. goveniana ssp. goveniana. any year. This is consistent with what reserve and surrounded other small Piperia yadonii (Yadon’s piperia) was is known of other orchid species (James patches with fairways (G. Fryberger, first collected by Leroy Abrams in 1925 Ackermann, Universidad de Puerto Pebble Beach Company, pers. comm. in open pine forest near Pacific Grove. Rico, in litt. 1997). As in some other Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43103 plant taxa, individual orchids that on about 140 ha (350 ac), were counted along the road to Cypress Point.’’ The flower in one year may not have the at all known sites throughout the range reference to a reservoir could refer to necessary energy reserves to flower in of this species since 1990 (R. Morgan, in Forest Lake in Pebble Beach but more the following year, so size and flowering litt. 1992; Uribe and Associates 1993; J. likely refers to the Pacific Grove are not necessarily age-dependent Norman, in litt. 1995; Allen 1996; Jones reservoir (Ferreira 1995). Eastwood (Wells 1981, Rasmussen 1995). and Stokes Assoc. 1996). Plants are (1902) described the species 2 years Piperia yadonii is found within often densely clustered, and may reach later, naming it after J. B. Hickman who Monterey pine forest and maritime densities of 100 to 200 plants in a few was her guide on that collecting trip. chaparral communities in northern square meters (10 to 20 plants in a few Potentilla hickmanii is a small coastal Monterey County. Its center of square feet) (Robert Hale, in litt. 1997). perennial herb in the rose family distribution is the Monterey Peninsula Because size and flowering are not (Rosaceae) that annually dies back to a where plants are found throughout the always age-dependent, the age structure woody taproot. The leaves are pinnately larger undeveloped tracts of Monterey of these populations is not known. compound into generally six paired, pine forest. To the north, the range of P. During these surveys, the greatest palmately cleft leaflets each 2 to 8 mm yadonii extends to the Los Lomas area, concentrations of Piperia yadonii, (0.1 to 0.3 in) long and 1 to 3 mm (to near the border of Santa Cruz County approximately 57,000 plants or 67 0.1 in) wide. Several reclining stems 5 (Allen 1996; Vern Yadon, Pacific Grove percent of all known plants were found to 45 cm (2 to 16 in) long support two Museum of Natural History, in litt. scattered throughout much of the to four branched cymes (flowering 1997). Searches north into Santa Cruz remaining Monterey pine forest owned stems) each of which has fewer than 10 County have uncovered little suitable by the Pebble Beach Company and the flowers. The flowers consist of 5 yellow habitat and no P. yadonii (Randall Del Monte Forest Foundation on the obcordate petals 6 to 10 mm (0.2 to 1.0 Morgan, biological consultant, pers. Monterey Peninsula (Allen 1996). About in) long and 5 mm (0.2 in) wide, with comm. 1996; Allen 1996), nor do 8,500 of these plants are in open space typically 20 stamens and about 10 styles regional herbaria contain collections areas there (Allen 1996). Another 2,000 (Abrams 1944, Ertter 1993). Potentilla from Santa Cruz County (R. Morgan, plants (2 percent of all known) occur on hickmanii is separated from two other pers. comm. 1996). Since preparation of remnant patches of Monterey pine forest potentillas that occur on the Monterey the proposed rule, P. yadonii has been in parks and open space areas of Pacific Peninsula (P. anserina var. pacifica and found at one location about 25 km (15 Grove and Monterey (Allen 1996; P. glandulosa) by a combination of its mi) south of the Monterey Peninsula Department of the Army, in litt. 1996; small stature, size and shape of leaflets, near Palo Colorado Canyon in maritime Jones and Stokes Assoc. 1996). Inland to and color of the petals. chaparral (Jeff Norman, biological the north, about 18,000 P. yadonii Only three historical locations for the consultant, in litt. 1995). Maritime plants, (21 percent of all known plants) plant are known, two in Monterey chaparral is uncommon along this have been found on the chaparral County and one in San Mateo County region of the Big Sur coastline, but a few covered ridges north of Prunedale (NDDB 1997c). A collection was made scattered patches do occur south to (Allen 1996). About 8,000 of these are by Ethel K. Crum in 1932, apparently in Pfieffer Point, located about 40 km (25 on lands that receive some protection at the vicinity of Eastwood’s original mi) from the Peninsula (J. Norman, pers. Manzanita County Park and The Nature collection on the Monterey Peninsula. comm. 1997). P. yadonii has been found Conservancy’s Blohm Ranch; the Ferreira (1995) surveyed the area only 6 to 10 km (4 to 6 mi) inland (Allen remainder are on private lands that are surrounding the Pacific Grove reservoir 1996; V. Yadon, in litt. 1997) despite not protected. South of the Peninsula in 1992, but found no Potentilla searches of lands farther east (Allen about 7,500 plants have been found on hickmanii plants or suitable habitat for 1996). Toro Regional Park, 16 km to 24 CDPR properties at Pt. Lobos Ranch, on the species. An extant population is km (10 to 15 mi) inland, was searched surrounding lands that are to be turned known from the western edge of the and four unidentified Piperia were over to CDPR in the future (Big Sur Monterey Peninsula on lands owned by found, but the habitat was reported to Land Trust, in litt. 1997) and in a Pebble Beach Company. This species not be similar to that favored by P. smaller parcel that is in private was collected from one other location, at yadonii (Allen 1996). ownership. ‘‘Moss Beach’’ near Half Moon Bay, San Piperia yadonii has been found in Considering the current abundance of Mateo County in 1905 by Katherine Monterey pine forest with a herbaceous, Piperia yadonii in the remaining large Brandegee and in 1933 by Mrs. E. C. sparse understory and in maritime tracts of Monterey Forest, this species Sutliffe (Ertter 1993). At the time the chaparral along ridges where the shrubs, probably occurred throughout the proposed rule was written this most often Arctostaphylos hookeri Peninsula when Monterey pine forests population was presumed extirpated, (Hooker’s manzanita), are dwarfed and were much more extensive. Many but it was rediscovered in 1995 by the soils shallow (Morgan and historic collections were made from the biologists from the California Ackerman 1990, Allen 1996). As in Pacific Grove area (R. Morgan, in litt. Department of Transportation (Caltrans) other orchid species, P. yadonii does not 1992), which has since been urbanized. surveying for a highway project (R. appear to be an early successional Continued fragmentation and Vonarb, Caltrans, in litt. 1995). species but is able to colonize trails and destruction of habitat due to urban and Potentilla hickmanii is currently roadbanks within the dwarf maritime golf course development are currently known to be extant at one location in chaparral or Monterey pine forest once the greatest threats to P. yadonii. Other San Mateo County and one in Monterey a decade or more has passed and if light threats include exclusion by alien County. On the Monterey Peninsula, P. and moisture regimes are favorable species, roadside mowing, and hickmanii grows in an opening within (Allen 1996; V. Yadon, in litt. 1997). potentially an increase in deer grazing Monterey pine forest. Loamy fine sandy The Pebble Beach Company funded of flowering stems. soils support a meadow community of intensive surveys for Piperia yadonii, Potentilla hickmanii (Hickman’s alien grasses and several introduced and focusing on the Monterey Peninsula in potentilla) was originally collected by native herbs. Twenty-four individuals of 1995, and beyond the Peninsula in Alice E. Eastwood (1902) in 1900 ‘‘near P. hickmanii were located during 1992 western Monterey County in 1996. the reservoir which supplies Pacific surveys (Ferreira 1995). In 1995, the site Approximately 84,000 P. yadonii plants Grove, [Monterey County] California, was surveyed on two occasions and no 43104 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations more than 21 plants were found (Jones suggestion that T. trichocalyx is a several hundred to 1,000 plants were and Stokes Assoc. 1996). Sampling in a sporadic hybrid between T. scattered in an 80-ha (200-ac) area that portion of this occurrence indicated that microcephalum and T. variegatum and had burned in 1987, near Huckleberry neither recruitment of new individuals recommended removing it from the list Hill (M. Griggs, in litt. 1988; V. Yadon, nor mortality of existing individuals had of taxa considered Monterey endemics. in litt. 1992). During surveys conducted occurred in the sampled area in the past This view was challenged by Vernal in 1996 of this burned area, two sites 2 years (T. Morosco, University of Yadon (in litt. 1983) who had grown T. were located with a total of 22 plants California Berkeley, in litt. 1997). The trichocalyx and observed that it (Jones and Stokes Assoc. 1996). A San Mateo County population grows on consistently produces up to seven seeds seedbank is expected to occur in the soil grassland slopes on private lands. It was per pod, while both purported parents in those locations where the plants were estimated to have between 2000 and were two-seeded taxa. Trifolium found in 1988 (Forest Maintenance 3000 individuals in 1995 and 1996 (R. trichocalyx has continued to be Standard 1990, Jones and Stokes Assoc. Vonarb, in litt. 1995; T. Morosco in litt. recognized as a distinct taxon by 1996). 1997). Abrams (1944), Munz (1959), Howitt Threats to the continued existence of The Pebble Beach Company has and Howell (1964) and, most recently, Trifolium trichocalyx include alteration maintained management responsibilities Isely (1993). of natural fire cycles and a proposed for the Monterey population, located in Trifolium trichocalyx is a much- development within the largest area an open space area called Indian branched prostrate annual herb with known to support clover in 1988. It is Village, although ownership of the land leaflets that are obovate-cuneate, 0.4 to also vulnerable to random events due to has been transferred to the Del Monte 1.2 cm (0.2 to 0.5 in) long, truncate or the small amount of its remaining Forest Foundation. Indian Village is shallowly notched at the ends. The habitat and the ephemeral nature of the available for use by residents and has numerous flowers are clustered into plant’s reappearance after fires. been developed as an outdoor recreation heads subtended by a laciniate-toothed Previous Federal Action area. Although a fence was constructed involucre. The calyces are 7 mm (0.3 in) in the 1970s to limit access by long, toothed, and conspicuously pilose; Federal government action on the five recreationists, the fenced area contained the purple corollas scarcely equal the plants began as a result of section 12 of only a portion of the population, and length of the calyx; the deciduous seed the Act of 1973, which directed the recreation impacts continued through pods enclose up to seven seeds. The Secretary of the Smithsonian Institution the mid 1990s (Ferreira 1995, Jones and plant can be quite inconspicuous, as the to prepare a report on those plants Stokes Assoc. 1996). In 1996, the Pebble prostrate branches may be only 3 to 4 considered to be endangered, Beach Company installed additional cm (1.2 to 1.6 in) long. With favorable threatened, or extinct in the United fencing to protect this population from conditions, however, branches may States. That report, designated as House recreational activities (M. Zander, reach a length of 20 to 30 cm (8 to 12 Document No. 94–51, was presented to Zander and Associates, in litt. 1996). in) (Abrams 1944; V. Yadon, in litt. Congress on January 9, 1975. In that Potentilla hickmanii is currently 1983). Branches from one large plant report, Astragalus tener var. titi, threatened by a proposed residential may spread through the forest litter and Potentilla hickmanii, and Trifolium development in the Del Monte Forest give the appearance of many plants. Of trichocalyx were recommended for which could alter hydrology at the the four species of Trifolium growing on endangered status. On July 1, 1975, the Monterey site (EIP Associates 1995). At Huckleberry Hill, all except T. Service published a notice in the both the Monterey and San Mateo sites trichocalyx contain two seeds per pod. Federal Register (40 FR 27823) of its invasive alien species may be competing Trifolium trichocalyx is known from acceptance of the report as a petition with P. hickmanii (Ferreira 1995; Jones only one area, Huckleberry Hill, within the context of section 4(c)(2) and Stokes Assoc. 1996; B. Ertter in litt. covering approximately 16 ha (40 ac) (now section 4(b)(3)(A)) of the Act, and 1997). The extremely small number of (Ferreira 1995) on the Monterey of its intention to review the status of individual plants remaining at the Peninsula. The plant occurs in openings the plant taxa named therein. The above Monterey site also make P. hickmanii within Monterey pine forest on poorly three taxa were included in the July 1, vulnerable to extirpation from random drained soils consisting of coarse loamy 1975, notice. On June 16, 1976, the events, such as genetic drift, poor years sands. Trifolium trichocalyx appears to Service published a proposal in the of reproduction and tree fall. be a fire-follower, taking advantage of Federal Register (41 FR 24523) to Trifolium trichocalyx (Monterey the reduced forest cover for the first few determine approximately 1,700 vascular clover) is a member of the pea family years after a fire, and then becoming plant species to be endangered species (Fabaceae). The genus Trifolium is well- scarce, persisting primarily as a pursuant to section 4 of the Act. The list represented in North America, with seedbank in the soil, as shade and of 1,700 plant taxa was assembled on approximately 50 species recognized in competition increase during recovery of the basis of comments and data received California (Munz 1959). Members of this the forest community. Heller’s by the Smithsonian Institution and the herbaceous genus are characterized by collection in 1903 was made 2 years Service in response to House Document their palmately three-foliate leaves after a fire in the area. Only scattered No. 94–51 and the July 1, 1975, Federal (hence the name Trifolium) and flowers individuals were reported by Theodore Register document. Astragalus tener in spheroid or oblong heads. Niehaus in 1973 and 1979 and by Yadon var. titi, Potentilla hickmanii, and Trifolium trichocalyx was first in 1980 in forest openings or edges Trifolium trichocalyx were included in collected by Amos A. Heller ‘‘in sandy (NDDB 1997d). One of these sites is the June 16, 1976, Federal Register pine woods about Pacific Grove’’ in presumed to have been extirpated when proposal. 1903, and described by him the Poppy Hills Golf Course was developed General comments received in following year (Heller 1904). Laura F. in 1980; the other two are within the relation to the 1976 proposal were McDermott (1910) considered the taxon boundaries of the Morse Reserve. summarized in an April 26, 1978, a variety of T. oliganthum in her Surveys for Trifolium trichocalyx Federal Register publication (43 FR treatment of the genus, but this was not were conducted in 1988. No plants were 17909). The Act Amendments of 1978 recognized in subsequent floras. found at the three sites reported earlier required that all proposals over 2 years Axelrod (1982) deferred to Gillett’s by Niehaus and Yadon. However, old be withdrawn. A 1-year grace period Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43105 was given to those proposals already petition. On October 13, 1983, the Summary of Comments and more than 2 years old. In the December Service found that the petitioned listing Recommendations 10, 1979, Federal Register (44 FR of these species was warranted but In the August 2, 1995, proposed rule 70796), the Service published a notice precluded by other pending listing and associated notifications, all of withdrawal of the portion of the June actions, in accordance with section interested parties were requested to 6, 1976, proposal that had not been 4(b)(3)(B)(iii) of the Act; notification of submit factual reports or information made final, along with four other this finding was published on January that might contribute to a final listing proposals that had expired. 20, 1984 (49 FR 2485). Such a finding decision. Appropriate Federal and State The Service published an updated requires the petition to be recycled, agencies, County and local notice of review for plants on December pursuant to section 4(b)(3)(C)(I) of the governments, scientific organizations, 15, 1980 (45 FR 82480). This notice Act. Annually, in October of 1984 and other interested parties were included Astragalus tener var. titi, through 1992, the Service found that the contacted and requested to comment. Potentilla hickmanii, and Trifolium petitioned listing of Astragalus tener During that comment period the Service trichocalyx as category-1 species. var. titi, Potentilla hickmanii, and received a request to hold a public Category-1 species were taxa for which Trifolium trichocalyx was warranted, hearing on the proposal. Due to the data in the Service’s possession was but that the listing of these species was Federal moratorium on final listing sufficient to support proposals for precluded by other pending proposals of listing. On November 28, 1983, the actions, imposed on April 10, 1995, the higher priority. Piperia yadonii did not public hearing could not be scheduled Service published in the Federal appear in earlier notices of review. Register a supplement to the Notice of during the initial comment period, Piperia yadonii first appeared as a which closed on October 9, 1995. Once Review (48 FR 53640); the plant notice candidate in the 1993 notice of review was again revised September 27, 1985 the moratorium was lifted on April 26, (58 FR 51144) in category-1. A 1996, listing actions were prioritized (50 FR 39526). In both of these notices, reevaluation of the existing data on the Astragalus tener var. titi, Potentilla and the public hearing was scheduled. status of Cupressus goveniana ssp. The public hearing was held on August hickmanii, and Trifolium trichocalyx goveniana and threats to its continued were included as category-2 species. 20, 1996, and its associated public existence provided sufficient comment period ran from June 26, 1996 Category-2 species were taxa for which information to propose to list this data in the Service’s possession to August 30, 1996. During the hearing species as threatened. and public comment period substantial indicated listing may be appropriate, A proposed rule to list Astragalus but for which additional data on new information was submitted on the tener var. titi, Piperia yadonii, Potentilla biological vulnerability and threats were abundance of Piperia yadonii. To allow hickmanii and Trifolium trichocalyx as needed to support a proposed rule. In the public to comment on this new endangered and Cupressus goveniana the 1985 notice, Cupressus goveniana information and to permit submission of ssp. goveniana as threatened was ssp. goveniana (as Cupressus goveniana) any new information that had become published in the Federal Register on also was included for the first time as available on the other taxa in the August 2, 1995 (60 FR 39326). Also a category-2 species. On February 21, package, the comment period was included in this proposed rule was a 1990 (55 FR 6184), the plant notice was reopened for 30 days from April 2, 1997, proposal to list the black legless lizard again revised, and Astragalus tener var. to May 2, 1997. Newspaper notifications (Aniella pulchra nigra) as endangered. titi, Potentilla hickmanii, and Trifolium were published in the Monterey Herald trichocalyx were included as category-1 Based upon new information received and the Santa Cruz Sentinel during the species, primarily because of additional since publishing the proposed rule, the initial comment period, and in the survey information supplied by the proposed listing of the black legless Monterey Herald, Half Moon Bay NDDB, which indicated that the lizard has been withdrawn by the Review, and Pacifica Tribune for the extremely limited populations of these Service as announced in a separate 1997 comment period. taxa made them particularly vulnerable Federal Register notice published During the public comment periods to impacts from a number of human concurrently with this final rule. and public hearing 20 agencies, groups, activities and natural random events. The Service published Listing Priority and individuals commented on the Those three species also appeared as Guidance for Fiscal Years 1998 and plant taxa included in the proposed category-1 species in the 1993 notice of 1999 on May 8, 1998 (63 FR 25502). The rule, some of them multiple times. The review (58 FR 51144). Cupressus guidance clarifies the order in which the majority of comments received goveniana ssp. goveniana was retained Service will process rulemakings giving concerned the proposal to list the black as a category-2 species in the 1990 and highest priority (Tier 1) to processing legless lizard; these comments are 1993 notices of review. On February 28, emergency rules to add species to the addressed in the concurrently published 1996, the Service published a Notice of Lists of Endangered and Threatened withdrawal for that taxon. Only those Review in the Federal Register (61 FR Wildlife and Plants (Lists); second issues relevant to the listing of the five 7596) that discontinued the designation priority (Tier 2) to processing final plant taxa are included in this final rule. of category-2 species as candidates. determinations on proposals to add Several comments contained significant Section 4(b)(3)(B) of the Act requires species to the Lists, processing new data and information concerning the the Secretary to make findings on proposals to add species to the Lists, biology, ecology, range, and distribution certain pending petitions within 12 processing administrative findings on of the subject taxa. This information was months of their receipt. Section 2(b)(1) petitions (to add species to the Lists, evaluated and incorporated into the of the 1982 amendments further delist species, or reclassify listed final determination as appropriate. The requires that all petitions pending on species), and processing a limited 12 issues raised by the commenters that October 13, 1982, be treated as having number of proposed or final rules to are relevant to the listing of the plant been newly submitted on that date. This delist or reclassify species; and third taxa and the Service’s response to each was the case for Astragalus tener var. priority (Tier 3) to processing proposed are summarized as follows: titi, Potentilla hickmanii, and Trifolium or final rules designating critical habitat. Issue 1: One commenter concluded trichocalyx because the 1975 Processing of this final rule is a Tier 2 that the Service had not provided a Smithsonian report was accepted as a action. thorough rationale for why the potential 43106 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations loss of habitat threatens the viability of al. 1986, Zedler and Scheid 1988). absent or uncommon there (R. Morgan, the species. Specifically, the commenter Documented links between pers. comm. 1996; Allen 1996). suggested that insufficient evidence was encroachment by alien plant taxa and Additional colonies within the range of presented on the effects of alteration of the disappearance of native California this species may be discovered on natural fire frequencies and of alien taxa in wildlands are also well- private lands, but large expanses of species on the proposed taxa. established in the literature. This issue unsurveyed habitat with protected Service Response: The Service has is discussed in greater detail under status and appropriate habitat do not discussed the role of fire in the life factors A and E in the ‘‘Summary of exist. Those portions of Fort Ord history of Cupressus goveniana ssp. Factors Affecting the Species’’ section. identified for protection of natural goveniana and Trifolium trichocalyx Issue 2: Several commenters resources are the largest protected tracts within this rule under the suggested that the Service has not given of land within the range of P. yadonii. ‘‘Background’’ section and under Factor sufficient consideration to the Surveys have been conducted at Fort E of the ‘‘Summary of Factors Affecting regulatory mechanisms already in place Ord and have located and identified P. the Species’’ section. With a large to protect the proposed plants; one yadonii in only one location with fewer human population residing on the suggested that the Coastal Act already than 50 plants (Jones and Stokes Assoc. Peninsula, wildfires have been and will provides substantial protection for the 1996; Allen 1996). Fort Ord appears to necessarily be suppressed to protect taxa included in the rule that occur on have little of the stunted maritime human life and property. Prescribed Pebble Beach Company lands. chaparral habitat in which this species burns have been suggested as a Service Response: The Service has is found (D. Allen, Biological management tool to replace wildfires at analyzed available information and Consultant, pers. comm. 1997). the Morse Reserve and Pt. Lobos State concluded that existing regulatory The 1995 and 1996 surveys revealed Reserve which support these taxa mechanisms, including the Coastal Act, that population sizes in the proposed (Forest Maintenance Standard 1990; have not been sufficient to adequately rule had been vastly underestimated Jones and Stokes Assoc. 1996). While protect the taxa included in this rule. because they were based on counts of fire is desirable from a land The discussion of existing regulatory flowering specimens. Although P. management perspective, prescribed mechanisms has been expanded since yadonii is now known to be more burns on Huckleberry Hill present a risk the proposed rule and is included under abundant than stated in the proposed that is not currently accepted by Factor D in the ‘‘Summary of Factors rule, the Service’s decision to list this surrounding residents and entities who Affecting the Species’’ section. species is based on significant threats authorize such activities (Forest Issue 3: Several commenters stated from direct loss and fragmentation of its Maintenance Standard 1990; R. that the information the Service used in remaining habitat in the foreseeable Andrews, Pebble Beach Community the proposed rule for Piperia yadonii future. The Service has considered all Services District, pers. comm. 1997). was dated and incomplete and that the new information received during public With increased development close to Service, therefore, was not relying on comment periods in making this final the Cupressus groves, homeowner the best scientific information available. determination and has incorporated it opposition to prescribed burns is likely Two commenters suggested that the into this final rule. to increase. The proximity of, and risk better our search methods and Issue 4: Several commenters to, adjacent residences also will understanding of this species, the more suggested that Piperia yadonii plants influence the manner in which burns of it we are likely to find; they can be distinguished from other Piperia would be implemented. For example, to concluded that the current population species with which it may occur only by facilitate control, vegetation may be sizes for this species indicate that it is their flowers; therefore, those crushed or chipped prior to burning or not in danger of extinction throughout population estimates based on counts of burns may be conducted in early spring, a significant portion of its range. basal leaves may have overestimated the when moisture levels are high (Greenlee Service Response: In preparing the true population sizes of P. yadonii by 1977, Green 1982). These methods, proposed rule, the Service used the best including colonies of other Piperia which may not mimic the fire regime information available on the species. under which the taxa evolved, can alter distribution and abundance of Piperia Service Response: The Service agrees the ability of the vegetation community yadonii. The information supplied by that flowers are needed for a positive to regenerate. For example, cool season the Pebble Beach Company in 1992, identification of Piperia yadonii. The burns may not provide sufficient heat to when the preparation of the proposed surveys conducted in 1995 and 1996 crack seed coats and promote rule began, estimated the population of relied primarily on counts of basal germination of some species, or P. yadonii in the Del Monte Forest to be leaves for population estimates. In most conversely, early spring burns may be about 400 plants (G. Fryberger, in. litt. populations, however, the surveyors detrimental to herbaceous species if the 1992). The 1995 surveys, funded by the caged plants when making initial counts seeds in the soil have already imbibed Pebble Beach Company, were not of basal leaves and noted leaf water when the fire occurs. The Service completed and made available to the characteristics if they appeared to differ concludes that increasing urban Service before publication of the from those of P. yadonii. Populations development reduces the likelihood that proposed rule in August 1995. were revisited during June and July fire will occur in a manner sufficient to Data from the surveys in 1995 and when P. yadonii is in flower to confirm ensure the continued viability of these 1996 support the range as stated in the identification. In the few cases where no taxa. proposed rule with the exception of the flowering plants were found, the plants The invasive nature and competitive Lobos Ranch and Palo Colorado were not assigned to species; in cases ability of the alien species, Genista populations which represent a range where a mix of species was found the monspessulana, Cortaderia jubata, extension south of the Monterey estimates were based on leaf Carpobrotus edulis, and alien grasses Peninsula. Regions to the north and east characteristics and, in some cases, such as Phalaris aquatica (Harding of the known range of this species have habitat type (Allen 1996). The principle grass) and Lolium multiflorum (Italian been searched without success and the surveyor was noted to be a careful ryegrass) which threaten the taxa in this appropriate dwarf maritime chaparral observer (V Yadon, in litt. 1997). While rule are well-documented (Mooney et and Monterey pine forest habitats are acknowledging the potential for Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43107 overestimates, the Service has accepted proven ability to persist through the maps of occupied habitat submitted to the information and focused on environmental extremes. the California Department of Fish and comparative population size and status, Issue 6: One commenter concluded Game in 1988 (maps by M. Griggs, in rather than specific counts. that the discovery of the population of litt. 1988; V. Yadon, in litt. 1988) to the Issue 5: One commenter submitted the Potentilla hickmanii in San Mateo proposed footprint of the proposed results of experimental transplantation County raises the potential that other development (EIP Associates 1995), of Piperia yadonii. The commenter populations may be discovered and that show that existing lots and a 30-m (100- suggested that there existed suitable the Service’s listing is therefore ft) setback will extend over about one- habitat for P. yadonii that was not at ‘‘. . .premature and. . .unwarranted.’’ quarter of the clover habitat occupied in carrying capacity and that The commenter also contends that the 1988 (Jones and Stokes Assoc. 1996). transplantation and the dispersal of Service must now conduct further Other maps produced in 1988 and used seeds to unoccupied sites ‘‘. . .offers a surveys for this species to determine if in the environmental document, means of reducing the threat posed by listing is warranted. however, indicate that the lots and development.’’ Service Response: The discovery of setback extend up to, but do not cover, Service Response: The commenter the population in San Mateo County habitat occupied in 1988 (EIP Associates submitted 1 year of data on the results does not substantially change the status 1995). As proposed in the of transplantation experiments on of this species. Potentilla hickmanii is environmental document, the habitat Piperia yadonii. Survival on four sites known from only two locations. The containing the seedbank outside of the 10 months after early April San Mateo County site that was recently lot boundaries and setback, would be transplanting ranged from 11 percent to discovered matches the general location designated forested open space (EIP 69 percent and averaged less than 50 of historical collections from the 1930s. Associates 1995). The Service believes percent. The proportion of transplanted Following the discovery of this that existing and proposed residential plants flowering on these sites ranged population, intensive surveys have been development either adjacent to, or from 0 to 7 percent. Of the 113 plants conducted for this species from Pillar partially over, the existing clover transplanted in October, 73 percent Point near Half Moon Bay to Mori Point seedbank substantially diminishes the survived to the following February’s near Pacifica, San Mateo County. No potential for the use of fire as a monitoring date. Of these plants, 20 additional populations have been found management tool to maintain this percent formed floral spikes (Allen (T. Morosco, in litt. 1997). In 1990, species. The Service discusses existing 1997; M. Zander, in litt. 1997). Ferreira (1995) searched the historical regulatory mechanisms in more detail Two possible explanations exist for collection location near the Pacific under Factor D of the ‘‘Summary of the absence of Piperia yadonii from Grove reservoir without success. As Factors Affecting the Species’’ section. areas of seemingly suitable habitat in discussed under Factor A in the Issue 8: Two commenters concluded the Del Monte Forest. Either a lack of ‘‘Summary of Factors Affecting the that Cupressus goveniana ssp. seed dispersal has limited the ability of Species’’ section, the Monterey goveniana is already protected due to its P. yadonii to colonize these areas or the population has fewer than 25 plants and inclusion in the Huckleberry Hill Open habitat is not suitable for the is potentially threatened by hydrologic Space and the Morse Botanical Reserve establishment and maintenance of a changes due to proposed development. and is therefore unlikely to become viable population of this species. P. The Service is neither required nor endangered in the foreseeable future. yadonii has light-weight, wind- funded to conduct further surveys for One commenter stated that it is likely dispersed seeds, capable of long- this species, and concludes that the best that fire would be used as a distance dispersal, making the former available information is sufficient to management tool in the future in Del explanation less likely, although still support the listing of this species under Monte Forest. possible. In the latter case, many the Act. Service Response: As discussed in the habitats which may initially appear Issue 7: One commenter concluded ‘‘Background’’ section, Cupressus suitable may not be able to support a that listing will not provide any goveniana ssp. goveniana is adapted to viable population of Piperia yadonii additional protection to Trifolium regenerate after a fire. While some over the range of environmental trichocalyx because most of the regeneration following mechanical conditions that can be expected to occur seedbank of this species is located in the clearing has occurred along a fire road through time. For example, an Huckleberry Hill Open Space area and (EIP Associates 1995; Patterson et al. introduced population that may persist the Morse Reserve. The commenter also 1995), periodic fire is the most effective during a period of normal rainfall may concluded that the Service has ignored and efficient method of promoting forest perish during an extended drought. To existing regulatory mechanisms which regeneration. The lands on which most demonstrate that an area of currently protect most of the seedbank of T. of the cypress grows are included in the unoccupied habitat is capable of trichocalyx. Morse Botanical Reserve and, therefore, supporting a viable self-sustaining Service Response: In 1987, a wildfire will not be developed. However, the population of Piperia yadonii could take on Huckleberry Hill burned the central periodic fires that create conditions several decades. The population would and southern portions of the habitat of necessary for regeneration of the grove, have to persist through the range of Trifolium trichocalyx. Following that are less likely to occur as residential environmental conditions common to fire, the largest colony of T. trichocalyx development encroaches on the Reserve the region where it occurs. The Service was found on lands owned by the and the Huckleberry Hill Open Space is not aware of any evidence that Pebble Beach Company outside of and area. At least three of the subdivisions demonstrates the existence of within the southern border of the proposed for development by the Pebble unoccupied habitat suitable for the Huckleberry Hill Open Space area Beach Company are to be located within growth and persistence of any of the (maps by M. Griggs, in litt. 1988; V. 300 m (984 ft) of the Morse Reserve. One species in this rule, including P. Yadon, in litt. 1988). Much of this site of these proposed subdivisions, would yadonii. The Service does not accept is now within the boundaries of one of be directly adjacent to the Cupressus transplantation or manual seed the residential subdivisions proposed by stands in the Morse Reserve and C. dispersal as alternatives to protecting the Pebble Beach Company (EIP goveniana ssp. goveniana occurs within naturally occurring populations with Associates 1995). A comparison of the its northern boundary (EIP Associates 43108 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations

1995). The 1990 Forest Maintenance enhanced by its listing as an endangered the listing of these species because these Standard prepared for the Huckleberry species. At its present population size activities were identified as threats in Hill Open Space stated that agencies on the Peninsula, an increase in the proposed rule. which have the authority to permit collection is not likely to substantially Service Response: In some cases, the prescribed burns in the area affect this species in itself, but activities described above may be recommended against it. As with combined with further expected habitat modified if they are likely to adversely Trifolium trichocalyx (see Issue 7) the loss and fragmentation, the collection of affect a federally listed species. Federal Service concludes that existing and flowering individuals could be listing provides some protection to plant proposed adjacent residential deleterious to this species. By species on Federal lands, and elsewhere development substantially diminish the publishing maps identifying the precise if a Federal permit or authorization is potential for the use of fire as a locations of this plant species, the required for a proposed action. Federal management tool to maintain this Service could be contributing to its listing also provides a significant degree species. Existing regulatory mechanisms decline. Although these maps may be of recognition by State and local are discussed in more detail under available through a FOIA request, agencies and private landowners which Factor D of the ‘‘Summary of Factors anyone intending to vandalize these may result in increased protection. Of Affecting the Species’’ section. species or their habitat is unlikely to the activities addressed above, those of Issue 9: One commenter concluded request this information in such a the military would require consultation that the Service should designate public and documented way. The with the Service to ensure that military critical habitat and disputed the Service believes that any small benefit activities would not jeopardize the Service’s reasoning that to do so would from critical habitat designation is continued existence of listed taxa. not be prudent due to the potential for outweighed by the increased threat to Greater detail on the prohibitions and vandalism and the lack of benefit. The Piperia yadonii species from protections afforded listed plant species commenter suggested that vandals overcollection and vandalism. A more is found in the ‘‘Available Conservation interested in the plants’ locations could detailed discussion of all aspects of Measures’’ section. get them from the Service by requesting critical habitat discussion for these five Peer Review them under the Freedom of Information taxa is provided in the ‘‘Critical Act (FOIA). Habitat’’ section. In accordance with policy Service Response: The Service has Issue 10: One commenter stated that promulgated July 1, 1994 (59 FR 34270), concluded that designating critical the Service has violated the the Service solicited the expert opinions habitat for these species is not prudent Administrative Procedures Act by not of independent specialists regarding for the reasons discussed in the ‘‘Critical notifying the County of San Mateo of the pertinent scientific or commercial data Habitat’’ section of this rule. Critical proposed rule, since a population of and assumptions relating to the habitat designation primarily affects Potentilla hickmanii occurs in San population biology and supportive Federal activities on lands on which Mateo County. biological and ecological information for there is, or is likely to be, some Service Response: At the time the the species under consideration for involvement by a Federal agency. All proposed rule was prepared, the listing. The purpose of such review is to but one of these plants occur only on population of Potentilla hickmanii in ensure listing decisions are based on non-Federal lands where there is no San Mateo County had not been scientifically sound data, assumptions, foreseeable Federal involvement. A few discovered (R. Vonarb, in litt. 1995). and analyses, including input of small populations of Piperia yadonii Since none of the species in the rule appropriate experts and specialists. occur on Federal land at the Department were known to be extant in any county Three peer reviewers were asked of the Army’s Presidio of Monterey, at other than Monterey, no additional specific questions relating to the the Naval Post-Graduate School in county governments were included on conclusions and assumptions included Monterey, and on the former Fort Ord. the address list. The County of San in the proposal for Cupressus goveniana The site on the former Fort Ord is to be Mateo was included in the notification ssp. goveniana, Piperia yadonii, and transferred to a local management provided during the most recent Potentilla hickmanii. Their comments entity, permanently protected, and comment period. have been incorporated into the final managed for the conservation of plants Issue 11: One commenter requested rule as appropriate and are summarized and wildlife. that the Service prepare an below. There may be some small benefit that environmental impact report (EIR) for One reviewer commented that most results from public notification if this listing action. Piperia species are pollinated by moths. critical habitat is designated, but this Service response: Because the Service The reviewer hypothesized that the benefit is largely duplicative with the is a Federal agency its actions are species has a mixed breeding system public notification that is part of the regulated by the National that involves both outcrossing and listing process itself. Moreover, any Environmental Policy Act (NEPA), inbreeding (either through self- benefit that results from public which would require preparation of an fertilization or breeding with notification must be weighed against the Environmental Impact Statement (EIS). neighboring plants that are likely to be potential for increasing the degree of This action is not regulated under the related). The reviewer agreed that threat to the species and also against the California Environmental Quality Act because Piperia have wind-dispersed potential for making cooperative (CEQA) which would require seed, physical obstructions, such as recovery efforts more difficult. The preparation of an EIR. The Service has houses, may affect seed dispersal. The Service also is concerned about the previously determined (48 FR 49244) reviewer suggested that the effects of potential for overcollecting of Piperia that rules issued pursuant to section 4(a) development and habitat fragmentation yadonii if critical habitat descriptions of the Act do not require the preparation on the pollinators of Piperia yadonii and precise maps of plant locations of an EIS. may be of greater concern than the were to be published in the Federal Issue 12: One commenter was effects on seed dispersal or germination, Register. An international trade exists in concerned that urban and golf course particularly if the species is primarily orchid species and the attractiveness of development and recreational and pollinated by insects of restricted P. yadonii to horticulturalists may be military activities would be curtailed by distribution. The same reviewer also Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43109 concluded that knowledge of the Summary of Factors Affecting the Associates 1995). Most populations of partitioning of genetic variation in Species each species in this rule occur within Piperia yadonii could influence the Section 4 of the Endangered Species this remnant block of forest or closely conservation strategy for this taxon. Act (16 U.S.C. 1533) and regulations (50 associated meadow and terrace habitats. Recent research results suggest that CFR part 424) promulgated to Habitat loss, fragmentation, and widespread tropical orchid species have implement the listing provisions of the alteration resulting from previous and much of their genetic variation within Act set forth the procedures for adding proposed developments pose significant populations and fewer differences species to the Federal Lists. A species threats to all five plant taxa in this rule. Habitat fragmentation, by reducing between populations, while in may be determined to be an endangered native vegetation to ‘‘islands’’ within a outcrossing species with restricted or threatened species due to one or more matrix of roads, residences, and golf distributions gene flow may be similarly of the five factors described in section courses, leads to population declines restricted and thus the genetic 4(a)(1). These factors and their variability found in one population may and extirpations in several ways. As application to Astragalus tener Gray var. habitats are reduced to smaller parcels, differ substantially from that of another. titi (Eastw.) Barneby (coastal dunes natural ecosystem processes that act If this is true in the genus Piperia, then milk-vetch), Cupressus goveniana Gord. over large areas, such as hydrologic or species with restricted distributions, ssp. goveniana (Gowen cypress), Piperia fire regimes, are altered. The edges of such as P. yadonii, would be more likely yadonii Morgan & Ackerman (Yadon’s habitat ‘‘islands’’ and the species within to differ genetically between piperia), Potentilla hickmanii Eastw. them may experience changes in light populations. Therefore, to preserve the (Hickman’s potentilla), and Trifolium level, wind velocity (leading to variability found within the species, as trichocalyx Heller (Monterey clover) are blowdown of trees), moisture many populations as possible would as follows: availability and an increase in alien need to be preserved. A. The Present or Threatened species. When the habitat fragments are Both reviewers of the Piperia Destruction, Modification, or small, these ‘‘edge effects’’ may information agreed that the habitat Curtailment of its Habitat or Range influence the entire remnant habitat. As information provided by Allen (1997) species composition of these remnant Two of the plant taxa, Astragalus habitats change, pollination and was consistent with what they know of tener var. titi and Trifolium trichocalyx, the species and genus. Mowing of herbivory may be affected (Harris and occur only on the Monterey Peninsula. Silva-Lopez 1992). Other influences flowering stalks and herbivory by deer The largest of the two Cupressus were threats discussed by one reviewer. from the surrounding environments, goveniana ssp. goveniana stands occurs such as drifting of pesticides, trampling The reviewer who commented on on the Monterey Peninsula, as does one by humans, dumping of yard waste, and Cupressus goveniana ssp. goveniana of only two populations of Potentilla cutting of vegetation for fire control, agreed with the Service’s conclusion hickmanii. The Monterey Peninsula is also can have significant deleterious that changes in the fire cycle were a also the center of distribution of, and effects on the survival of native species. threat to this taxon. The reviewer noted supports the largest concentration of, Astragalus tener var. titi is believed that opposition to prescribed burning in Piperia yadonii. Habitat for all five plant extirpated in San Diego and Los Angeles the Del Monte Forest still exists, taxa has been altered, destroyed, or counties due to habitat destruction. The although less so than in the past. The fragmented by residential development only known occurrence is composed of reviewer noted that vegetation removal and conversion to golf courses and other eleven colonies, bisected by two roads, along fire roads in the Cupressus stands recreational facilities. a golf green, and an 8-foot wide horse on the Peninsula has been a problem Recent estimates of the loss of trail on the Monterey Peninsula. and that erosion has increased due to Monterey pine forest in California Development of the marine terrace fire road construction and maintenance. indicate that 40 percent (Huffman and habitat of this species has led to actual Assoc. 1994) to 50 percent (Jones and Two reviewers commented on the and potential problems with invasive Stokes Assoc. 1994a) of the Monterey reproductive biology of Potentilla alien species, trampling, and potential pine forest once found in the Monterey genetic changes, discussed under Factor hickmanii; one reviewer concluded that region has been eliminated. On the the species was self-compatible while E. Monterey Peninsula itself, the Cupressus goveniana ssp. goveniana the other reviewer noted that self- proportion destroyed is much greater; is restricted to only two sites in western pollinated plants in a recent controlled on those marine terraces and old dune Monterey County. The occurrence on experiment did not produce seed. Very soils that underlie most of the the Monterey Peninsula is located in the few potential pollinating insects have Peninsula, less than 20 percent of the Morse Botanical Reserve and been noted on P. hickmanii, despite historical Monterey pine forest is Huckleberry Hill Open Space area. As focused observations by one of the estimated to remain, much of it in development has surrounded this reviewers. One reviewer specifically fragmented and increasingly isolated location, the edges and outlying stands noted that seed set is generally low. One stands (Jones and Stokes Assoc. 1994a). of this occurrence have been eliminated reviewer responded to the Service’s The Pebble Beach Company’s lot or diminished. For example, portions of query about distribution of this species development program includes this occurrence were lost during by providing information on recent proposed construction of 15 residential construction of the Poppy Hills golf searches that have been conducted subdivisions, the Del Monte Forest’s 8th course in the 1980s (J. Vandevere, specifically for P. hickmanii. No 18-hole golf course, and associated California Native Plant Society (CNPS), additional populations have been recreational facilities on 277 ha (685 ac). in litt. 1992; G. Fryberger, pers. comm. located, and very few unsearched areas This development would eliminate or 1992). Trees planted as mitigation for that may have appropriate habitat degrade 165 ha (412 ac) of Monterey that loss and a small stand of naturally remain to be searched. Both reviewers pine forest and associated maritime occurring C. goveniana ssp. goveniana agreed that nonnative species are a chaparral habitat on the Peninsula, and Pinus muricata were left in a 19.5- threat to this species at both locations including the Peninsula’s second largest ac habitat patch of Monterey pine forest where it is known to occur. contiguous block of forest habitat (EIP and chaparral, bounded by golf green. 43110 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations

As proposed for the most recent contiguous habitat and supports about property, known to support several subdivision and development, this site 70 percent of known plants. The Del thousand P. yadonii, has been would be converted to a 21-lot Monte Forest includes over half (73 ha subdivided, but construction has not yet residential area, eliminating most of the (184 ac)) of the acreage estimated to still begun (M. Silberstein, Elkhorn Slough naturally occurring cypress and leaving be extant for this species (EIP Associates Foundation, pers. comm. 1997). the remaining cypress in a portion of 2.8 1995, Allen 1996). Based on the Trifolium trichocalyx is known only ha (7 ac) of Forested Open Space distribution of plants found in from Monterey pine forest on the bounded by roads, a golf green and remaining Monterey pine forest, Monterey Peninsula. Because this houses (EIP Assoc. 1995). At least three historical collections from Pacific species appears to persist primarily as a of the proposed subdivisions are within Grove, and the amount of Monterey Pine seedbank until fire causes a flush of 300 m (1000 ft) of the C. goveniana ssp. forest which the Peninsula historically establishment, only a few colonies of goveniana stands in the Morse Reserve supported, the distribution of P. yadonii living plants have been seen recently and one proposed residential today is likely only a fraction of the development abuts the Reserve’s historical extent of this species on the within and south of the Huckleberry southwest corner (EIP Assoc. 1995). The Peninsula. In the habitat that remains, P. Hill Open Space area in a region that proximity of these residential areas yadonii is found in 13 of the proposed burned in 1987 (Jones and Stokes Assoc. diminishes the opportunity to use subdivisions. The 245-ac site of the 1996). Of locations mapped for this prescribed fire as a management tool proposed golf course supports about species since the mid-1980s, about one- within the reserve. In addition, due to 16,000 individuals of this species and is half of the area where plants have been concern about potential wildfire, 12-ft the second largest contiguous stand of recorded is in the Huckleberry Hill wide fire roads have been maintained Monterey pine forest left on the Open Space area and Morse Reserve, throughout the Reserve and Huckleberry Peninsula. The development currently and approximately one-half occurs to Hill Open Space, removing individual proposed by the Pebble Beach Company the south and east. The mapped location Cupressus trees and causing erosion in would result in the loss or alteration of of one colony is now a golf green some places (Forest Maintenance habitat supporting about 46,000 plants (Ferreira 1995). The development lots Standard 1990, V. Yadon in litt. 1997). of Piperia yadonii on about 60 ha (149 and vegetation clearance zones for one These fire roads provide a suitable path ac) (EIP Associates 1995). This is about of the proposed subdivisions appear to for alien plants to enter and spread 80 percent of known plants on the extend over a part of the largest through the stands. Peninsula. occurrence mapped after the 1987 fire Potentilla hickmanii on the Monterey Including the 7,500 plants in the (Yadon in litt. 1988, Jones and Stokes Peninsula is known from one Huckleberry Hill Reserve (Richard Assoc. 1996), although other documents occurrence of about 25 plants that grow Nichols, EIP Associates, pers. comm. depict the lots adjacent to, but not over, in a meadow area designated as open 1997), about 10,800 plants of Piperia previously mapped occupied habitat space and used for recreation. In the yadonii would fall within proposed (EIP Associates 1995, M. Zander, in litt. 1970s, habitat occupied by P. hickmanii forested open space (EIP Associates 1996). In either case, the construction of was lost and degraded by fill brought in 1995). Other open space areas are residences over or directly adjacent to for a ball field (Ferreira 1995); habitat located at the ends or borders of the this occurrence is likely to preclude the trampling during recreational activities proposed subdivisions or in some cases use of fire as a management tool to was noted as recently as 1995 (Jones and are encircled by the proposed lots. The promote its continued existence in the Stokes Assoc. 1996). In 1996, the Pebble effects of habitat fragmentation are future. Beach Company built an additional likely to result in the eventual wood fence to exclude recreational extirpation of colonies in these areas. In B. Overutilization for Commercial, activities from the remainder of the the nearby La Mesa housing Recreational, Scientific, or Educational population (M. Zander, in litt. 1996). development, for example, Genista Purposes Currently, development of an 18-ac, 21- monspessulana, an alien shrub, has Overutilization is not currently lot residential subdivision is proposed invaded and is expected to engulf known to be a factor for the five plant in Monterey pine forest within 100 m remnant habitats that support Piperia taxa, but unrestricted collecting for (330 ft) of the occurrence (EIP yadonii (Uribe & Assoc. 1993). horticultural purposes or excessive Associates 1995). This subdivision Trampling by recreationists is a noted visits by individuals interested in seeing could negatively affect P. hickmanii problem in remnant habitats that rare plants is a potential threat to these both by increasing the amount of human support P. yadonii at two city parks (D. taxa. Piperia yadonii, like many other use in the area and by altering the Allen, pers. comm. 1997). Mowing for orchids and showy-flowered monocots, hydrology of the site; a small roadside fire control, which shears off may be particularly vulnerable to watercourse and freshwater marsh that the flowering stalks of P. yadonii, collecting by amateur and professional likely influence the meadow habitat of thereby preventing reproduction, also horticulturalists due to the plant’s P. hickmanii are located about 400 m occurs in remnant open space habitats unusual flower and its tuberous growth (1300 ft) upslope from the occurrence on the Peninsula (V. Yadon, in litt. habitat which increases the ease with and are within the proposed lot 1997). which it can be moved. development area. Mitigation proposed Beyond the Monterey Peninsula, over to reduce this threat is the elimination 60 percent of the known Piperia yadonii Vandalism is a potential threat for of the three lots that cover and border plants are on privately owned lands Potentilla hickmanii and Astragalus the marsh and riparian areas (EIP without protection, most of these in the tener var. titi. The sites that these plants Associates 1995). Nevertheless, runoff Prunedale area. Two residential inhabit could be easily vandalized, into the meadow may be affected by developments of over 16 ha (40 ac), each resulting in the destruction of a upslope development. of which support potential maritime significant portion of the population. The Monterey Peninsula appears to be chaparral habitat, have been approved The sites where A. tener var. titi exist the center of distribution of Piperia in this area in the last 2 years (L. Osorio, are small and easily accessible, yadonii. The Peninsula provides the Monterey County Planning and Building increasing their susceptibility to greatest amount of remaining Inspection, pers. comm. 1997). A third destruction. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43111

C. Disease or Predation Commission has listed Astragalus tener Forest LUP was certified by the Coastal Disease is not known to be a factor var. titi, Potentilla hickmanii, and Commission, development permits affecting the five plant taxa being Trifolium trichocalyx as endangered. within the Del Monte Forest Coastal proposed as endangered. Several Piperia yadonii and Cupressus Zone became the responsibility of the references discuss diseases that affect goveniana ssp. goveniana are on List 1B County of Monterey. The County cypresses (Peterson 1967, Wagener of the CNPS Inventory (Skinner and planning process does not appear to be 1948). However, diseases, such as the Pavlik 1994), indicating that, in implemented in a manner that will oak root fungus (Armillariella mellea) accordance with section 1901 of the maintain the standards developed in the CDFG Code, they are eligible for State and the canker-producing strain of Del Monte Forest LUP, in some cases. listing. Although the CESA prohibits the Cornyeum, primarily seem to attack For example, the Coastal Act defines ‘‘take’’ of State-listed plants (section cypresses planted outside of their native Environmentally Sensitive Habitat 1908 and section 2080) not all projects range and in nursery settings (Wagener Areas (ESHAs) as ‘‘...any area in which comply and the law is not always 1948). No signs of disease or predation plant or animal life or their habitats are enforced. California Senate Bill 879, have been noted by biologists familiar either rare or especially valuable...and passed in 1997 and effective January 1, with the two Cupressus goveniana ssp. which could be easily disturbed or 1998, requires individuals to obtain a goveniana groves (J. Griffin, Hastings degraded by human activities and section 2081(b) permit from CDFG to Natural History Reservation, pers. developments.’’ County policy identifies take a listed species incidental to comm. 1992; V. Yadon, pers. comm. ESHAs as those identified in the 1984 otherwise lawful activities, and requires LUP. Because Piperia yadonii was not 1992). that all impacts be fully mitigated and Increased predation (herbivory) by recognized taxonomically in 1984, its all mitigation measures be capable of deer due to an elevated deer population location in the Del Monte Forest is not successful implementation. addressed as an ESHA in the recent on the Peninsula is a potential threat to These requirements have not been Piperia yadonii. During surveys in 1995 County environmental impact report for tested and several years will be required the Pebble Beach Company’s proposed and 1996 a sample of plants both on and to evaluate their effectiveness. off of the Peninsula were placed under development (EIP Associates 1995). It The CEQA requires a full public therefore does not receive the cages to protect them from large disclosure of the potential herbivores. About 13 percent of the protections afforded by the Coastal Act environmental impacts of proposed (EIP Associates 1995). caged plants flowered, while in projects. The public agency with unprotected plants only about 2 percent primary authority or jurisdiction over Sites which support the other species could be found with flowering stems the project is designated as the lead in this rule, Cupressus goveniana ssp. (Allen 1996), a reduction of 85 percent. agency and is responsible for goveniana, Piperia hickmanii, part of Severe herbivory of leaves, also likely conducting a review of the project and the occurrence of Trifolium trichocalyx from deer, has been noted as well (V. consulting with other agencies and Astragalus tener var. titi, were Yadon, in litt. 1997). Although the concerned with resources affected by designated ESHAs in the Del Monte Service is not aware of any quantitative the project. Required biological surveys Forest LUP. The LUP and appended data on deer populations on the are not always adequate to identify Management Plan for Del Monte Forest Peninsula, anecdotal evidence, such as sensitive species, however. For Open Space Property specifies that sightings and reports of health, suggest example, in the northern portion of the these sites will remain in undeveloped that the number of deer on the range of Piperia yadonii a 40-acre open space and will be managed to Peninsula is high (T. Palmisano, residential development was recently protect the sensitive plant species California Department of Fish and Game approved in an area that contains which occur there. In managing these (CDFG), pers. comm. 1997; Mary Ann maritime chaparral habitat and is areas, the Pebble Beach Company has Matthews, CNPS, in litt. 1996; D. Steeck, located within 5 miles of a known site constructed fencing around part of the USFWS, pers. obs. 1996). If the loss of of P. yadonii. The biological survey was P. hickmanni and A. tener var. titi 85 percent of flowering stems calculated conducted in September 1995, when no occurrences and has a program for by Allen (1996) is close to actual above-ground parts of P. yadonii are control or eradication of alien species herbivory rates on the Peninsula, present. When sensitive species are within those ESHAs under their predation could have a substantial effect identified, proposed mitigation for management. The DMFF, which on the reproductive success of the significant impacts often involves manages the Morse Reserve and species, particularly as populations are transplantation of sensitive plants (EIP Huckleberry Hill Open Space area, also reduced by large scale habitat loss and Associates 1995) which has poor has a control program for alien species. fragmentation due to development. success rates (Fiedler 1991, Allen 1994, Despite these protections, adjacent areas M. Zander, in litt. 1997). Furthermore, identified for development have D. The Inadequacy of Existing when the effects of a proposed project negatively affected, and likely will Regulatory Mechanisms cannot be mitigated to a level of continue to, affect these areas. For Existing regulatory mechanisms that insignificance, the County lead agency example, the C. goveniana ssp. may provide some protection for taxa in may still cite overriding considerations goveniana stands that extended outside this rule include—(1) the California and approve the project. the boundaries of the Morse Reserve Endangered Species Act (CESA); (2) the All of the taxa in this rule occur, in were removed during the development California Environmental Quality Act part, in that portion of the Monterey of Poppy Hills golf course, and wetlands (CEQA); (3) the California Coastal Act; Peninsula included in the California upslope from the Potentilla hickmanni and (3) local land use laws, regulations, Coastal Zone. The Del Monte Forest occurrence are likely to be influenced and policies. Land Use Plan of 1984 (Del Monte by a proposed housing development Under the CESA (California Fish and Forest LUP) was developed to comply (EIP Associates 1995). While the Coastal Game Code section 2050 et seq.) and the with the Coastal Act’s requirement that Act and resulting Del Monte Forest LUP Native Plant Protection Act (California all counties prepare a plan for those provide some protection for the Fish and Game Code section 1900 et portions of the Coastal Zone within occurrences of these plant taxa located seq.), the California Fish and Game their jurisdiction. Once the Del Monte in the Coastal Zone, the Service 43112 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations concludes that it is not adequate to competing with P. hickmanii. Alien will be required to prevent the preclude the need to list these taxa at grasses, such as Phalaris aquatica, are extinction of this species in the wild. this time. also found at the San Mateo site, and Alteration of habitat due to A management plan for Point Lobos Genista monspessulana, an invasive continuing recreational use of portions State Reserve states that the major effort alien shrub, occurs there on the of Pebble Beach threaten the small within the Reserve will be surrounding slopes (T. Morosco, in litt. populations of Astragalus tener var. titi, ‘‘management toward the pristine state, 1997). At this location P. hickmanii is and Potentilla hickmanii. Trampling by that is, the state the ecosystem(s) would reported to occur in greatest humans and horses can affect these taxa have achieved if European man had not concentrations in those areas that directly, as well as alter soil compaction interfered,’’ but also to provide limited support the most intact native habitats and erosion such that alien taxa increase public access to the Cupressus with the fewest annual grasses (B. Ertter, at the expense of native taxa. goveniana ssp. goveniana area (CDPR in litt. 1997); whether lower densities At least three of the five plant taxa are 1979). The stand is currently protected elsewhere are due to competition from threatened with extinction from natural from human disturbance by virtue of its annual grasses has not yet been random acts by virtue of the limited isolation. With surrounding parcels to explored. number of individuals and range of the be transferred to the Reserve over the Cortaderia jubata (pampasgrass) and existing populations. Inbreeding may next decade, more active management of Genista monspessulana (French broom) affect small or isolated populations if it the area, particularly prescribed are two other alien plant taxa that results in inbreeding depression, burning, is likely (K. Gray, pers. comm. invade forests and meadows on the typically characterized by lowered seed 1997). Monterey Peninsula. The Pebble Beach set, lowered germination rates, and The Service concludes that existing Company has an on-going eradication lowered survival and reproduction by regulatory mechanisms have provided program for these two taxa in the offspring. Small populations are also some protection for these taxa, but the Huckleberry Hill area adjacent to vulnerable to extinction by a single implementation of the regulations has Cupressus goveniana ssp. goveniana. human-caused or natural event. While not been adequate to preclude the need However, numerous fire roads provide annual plant taxa, such as Astragalus to list these taxa. open habitat for these invasive taxa and tener var. titi, will undergo radical fluctuations in population size as a E. Other Natural or Manmade Factors it is unlikely that they will ever be result of natural environmental Affecting Their Continued Existence completely eradicated from the area. An conditions, the long-term survival of extensive stand of Genista has been Alien plant taxa threaten or are a this taxa depends on maintaining seed mapped adjacent to the grove of C. potential threat to four of the taxa production and appropriate habitat for goveniana ssp. goveniana at Pt. Lobos included in this rule. Two of the five population expansion. plant taxa occur in meadow habitat Reserve (Patterson et al. 1995), where it The Service has carefully assessed the containing a high percentage of alien may interfere with stand regeneration in best scientific and commercial plants. Along 17-Mile Drive, Astragalus the future (K. Gray, pers. comm. 1997). information available regarding the past, tener var. titi occurs with the alien Fire plays an important role in the present, and future threats faced by Plantago coronopus (cut-leaf plantain) regeneration of all cypress taxa (Vogl et these species in determining to list these and Carpobrotus edulis. Carpobrotus al. 1988). Alteration of the natural fire species. Based on this evaluation, the edulis, in particular, spreads rapidly cycle may negatively affect regeneration preferred action is to list Astragalus and competes aggressively with native of Cupressus goveniana ssp. goveniana. tener var. titi, Piperia yadonii, Potentilla species for space. The Pebble Beach Fire is essential since it opens cones hickmanii, and Trifolium trichocalyx, as Company has an active C. edulis that otherwise remain unopened on the endangered. These taxa are in danger of eradication program in, and adjacent to, trees, and it creates conditions extinction throughout all or a significant the exclosure on the ocean side of 17- appropriate for seedling establishment portion of their ranges due to habitat Mile Drive (M. Zander, in litt. 1997). (Vogl et al. 1988). Prescribed burning destruction and fragmentation from However, C. edulis has been planted has not been tried at the Pt. Lobos residential and recreational and is being maintained within a few Ranch occurrence, in part due to the development; competition from alien feet of the unfenced portion of the risks to surrounding privately owned plants; alteration of natural fire cycles; habitat of A. tener var. titi on the inland lands (K. Gray, pers. comm. 1997). and the reduced numbers and size of side of 17-Mile Drive owned by the Griffin (pers. comm. 1992) and populations that increase the likelihood Monterey Peninsula Country Club Ferreira (1995) have noted that of extinction from naturally occurring (Zander 1996). Plantago coronopus, a establishment of Pinus radiata events and unanticipated human prolific seeder, appears to be crowding (Monterey pine) seedlings after the 1987 activities. out native species on both sides of 17- fire has been so vigorous that the pine For the reasons discussed as follows, Mile Drive (Ferreira 1995). may be expanding its range at the the Service finds that Cupressus Both populations of Potentilla expense of Cupressus goveniana ssp. goveniana ssp. goveniana is likely to hickmanii may be threatened by alien goveniana. Yadon (retired Director, become endangered within the species. The population on the Pacific Grove Museum of Natural foreseeable future throughout all or a Monterey Peninsula occurs at Indian History, pers. comm. 1992) believes that significant portion of its range due to Village where Ferreira (1995) noted four the pine’s preference for richer soils habitat alteration and destruction, and/ alien grass taxa associated with it: Aira than those that support C. goveniana or disruption of natural fire cycles. caryophylla, Bromus mollis, Festuca ssp. goveniana would prevent long-term Competition from alien plants is a arundinacea, and Lolium multiflorum. establishment of pines in C. goveniana potential threat. The Service has The Festuca may have been introduced ssp. goveniana habitat. determined that threatened rather than in a ‘‘meadow mix’’ used on adjacent Trifolium trichocalyx exemplifies a endangered status is appropriate for C. fairways; its stature and invasiveness taxon that may persist only as a goveniana ssp. goveniana because one appear to compete with P. hickmanii. seedbank for years until released by a of two populations (the Gibson Creek Plantago coronopus, also an alien, is fire event. Maintaining habitat and stand managed by the CDPR) has not present at this site and may be certain fire management prescriptions been significantly affected by human Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43113 activities. Also, since it is long-lived, C. involvement. With the exception of goveniana ssp. goveniana, or Trifolium goveniana ssp. goveniana appears to be Piperia yadonii, none of the plants in trichocalyx, therefore, is not prudent able to withstand several decades this rule occur on Federal lands, nor is because the additional benefit, if any, without fire as long as sufficient habitat there any historical record of them that might derive from public is maintained. Other alternatives to this occurring on Federal lands. Federal notification duplicates those that come action were considered but not lands with appropriate habitat are from the public outreach component of preferred because not listing this species uncommon throughout the historical the listing process itself, and would be would not provide adequate protection range of these species, and no potential outweighed by the potential detriment and would not be in keeping with the habitat for Potentilla hickmanii, to the recovery of these species due to purposes of the Act, and listing it as Astragalus tener var. titi, Cupressus the misconception that such designation endangered would not be appropriate, goveniana ssp. goveniana, or Trifolium imposes Federal restrictions on private as the populations receive some trichocalyx is known to occur on landowners where no Federal nexus protection in the Morse Reserve and at Federal lands. In addition, Federal exists. Pt. Lobos State Park. Therefore, the involvement is unlikely to occur on Piperia yadonii also occurs preferred action is to list Cupressus non-Federal lands having, or likely to predominantly on private lands where goveniana ssp. goveniana as threatened. have, populations of these four species Federal involvement is unlikely. In the case of P. yadonii, however, a majority Critical Habitat because the activities typically conducted in the habitat of these species of its individuals are on lands of a single Critical habitat is defined in section 3 do not normally require Federal permits private landowner, who commissioned of the Act as: (i) the specific areas or authorization or Federal funding. the studies that documented the species’ within the geographical area occupied range and population status. This Due to this probable lack of Federal by a species, at the time it is listed in landowner, therefore, is well aware of involvement, the only potential benefit accordance with the Act, on which are the presence and location of the species that would result from critical habitat found those physical or biological on its property and there would be no designation would be notification to the features (I) essential to the conservation additional benefit to the species from public, private landowners, and local of the species and (II) that may require providing to the landowner location government agencies of the need to special management consideration or information that it already has. Critical protect these species and their habitats. protection; and (ii) specific areas habitat designation also would increase outside the geographical area occupied However, during the listing process, and the risk of overcollection of P. yadonii by a species at the time it is listed, upon after a species is listed, the Service due to the publication of precise a determination that such areas are conducts public outreach in affected locational maps and detailed habitat essential for the conservation of the local communities. Because this form of descriptions as required under critical species. ‘‘Conservation’’ means the use public notification is more targeted to habitat regulations (16 U.S.C. 1533(b) of all methods and procedures needed specific landowners and local (5)(A)(I) and (6)(A); 50 CFR 424.12(c), to bring the species to the point at governments, it is more effective than 424.16(a) and 424.18(a)). The risk of which listing under the Act is no longer the notification that is provided through increased threat to P. yadonii from necessary. the designation of critical habitat. Thus, overcollection is discussed in more Section 4(a)(3) of the Act, as in the case of these four plant species, detail. amended, and implementing regulations there would be little or no additional Piperia yadonii also occurs on State (50 CFR 424.12) require that, to the benefit provided by designation beyond lands. The location of these plants is maximum extent prudent and that which results from the listing known to the managing agency, the determinable, the Secretary designate process itself. Furthermore, designation CDPR, which is committed to protecting critical habitat at the time the taxa are may lead to adverse reactions by these plants. Critical habitat designation determined to be endangered or landowners whose property is for these lands, therefore, would not be threatened. Critical habitat is not designated as critical habitat, because of additional benefit to the species. determinable when one or both of the such an action is often misconstrued as One population of Piperia yadonii following situations exist—(1) an attempt by the Federal government to was reported from Federal land on Fort Information sufficient to perform confiscate private property. In fact, Ord in the early 1990s, but this species required analyses of the impacts of the section 9 of the Act does not prohibit has not been seen there for several years designation is lacking, or (2) the destruction of plants or their habitat on despite extensive directed surveys biological needs of the species are not private land. Moreover, because there is (Jones and Stokes Assoc. 1996). The sufficiently well known to permit no likely Federal nexus there is no land where it occurred is to be identification of an area as critical means of protecting critical habitat on preserved within a development area habitat (50 CFR 424.12(a)(2)). Service these lands, even if critical habitat were and will be transferred to a local entity regulations (50 CFR 424.12(a)(1)) state to be designated. The widespread for that purpose in the near future. that designation of critical habitat is not misconception that critical habitat Should the plant reappear at this site, it prudent when one or both of the designation on private lands necessarily is likely that the population will be following situations exist—(1) the imposes restrictions on private small and highly vulnerable to species is threatened by taking or other landowners makes designation of collection. Critical habitat designation at human activity, and identification of critical habitat counterproductive and this site, therefore, may increase the critical habitat can be expected to renders cooperative efforts with private threat to P. yadonii from overcollection increase the degree of such threat to the landowners to recover species more in this easily accessible area. species; or (2) such designation of difficult. Such cooperative efforts are Three small colonies of Piperia critical habitat would not be beneficial essential if the Service is to recover yadonii, with a total of a few hundred to the species. species which, like these four taxa, only plants, also occur on Federal lands Critical habitat designation applies occur on private lands where there is no managed by the Naval Postgraduate only when the taxa involved occur on known Federal nexus. Designation of School and the Presidio of Monterey. Federal lands or on non-Federal lands critical habitat for Potentilla hickmanii, The Navy is aware of the location of for which there is some Federal Astragalus tener var. titi, Cupressus these plants and is committed to 43114 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations protecting them. While designation of Federal, State, and private agencies, the United States to import or export; critical habitat for these populations groups, and individuals. The Act transport in interstate or foreign may provide some small benefit, this provides for possible land acquisition commerce in the course of a commercial benefit must be weighed against the and cooperation with the states and activity; sell or offer for sale these risks associated with such designation. requires that recovery actions be carried species in interstate or foreign Piperia yadonii is an orchid, a plant out for all listed species. The protection commerce; remove and reduce to family highly prized by collectors required of Federal agencies and the possession the species from areas under throughout the world. The threat that prohibitions against certain activities Federal jurisdiction; maliciously collection poses to wild orchids is involving listed plants are discussed, in damage or destroy any such species on considered sufficiently serious that the part, as follows. any area under Federal jurisdiction; or entire orchid family, with the exception Section 7(a) of the Act, as amended, remove, cut, dig up, damage, or destroy of certain species considered at greatest requires Federal agencies to evaluate any such endangered plant species on risk, is included on Appendix II of the their actions with respect to any species any other area in knowing violation of Convention on the International Trade that is proposed or listed as endangered any State law or regulation or in the in Endangered Species (American or threatened and with respect to its course of any violation of a State Orchid Society 1997). Although P. critical habitat, if any is being criminal trespass law. Cupressus yadonii is not currently sought by designated. Regulations implementing goveniana ssp. goveniana (Gowen collectors, other wild California orchids this interagency cooperation provision cypress), proposed to be listed as are collected (Coleman 1995). Piperia of the Act are codified at 50 CFR Part threatened, would be subject to similar yadonii was previously classified as 402. Section 7(a)(4) of the Act requires prohibitions (16 U.S.C. 1538(a)(2)(E); 50 Habenaria unalascensis, Habenaria is a Federal agencies to confer with the CFR 17.61, 17.71). Seeds from cultivated genus that is available commercially Service on any action that is likely to specimens of threatened plant species and for which instructions for the jeopardize the continued existence of a are exempt from these prohibitions cultivation of its species are readily species proposed for listing or result in provided that a statement of ‘‘cultivated available on the Internet (Dragon Agro destruction or adverse modification of origin’’ appears on their containers. Products 1997). The listing of P. yadonii proposed critical habitat. If a species is Certain exceptions apply to agents of the as endangered publicizes the rarity of listed subsequently, section 7(a)(2) Service and State conservation agencies. the taxa and thus can make them requires Federal agencies to insure that It is the policy of the Service (59 FR attractive to researchers, curiosity activities they authorize, fund, or carry 34272) to identify to the maximum seekers, or collectors of rare plants. out are not likely to jeopardize the extent practicable at the time a species Furthermore, if the majority of the continued existence of the species or to is listed those activities that would or plants on the Peninsula are lost to destroy or adversely modify its critical would not constitute a violation of proposed developments, the potential habitat. If a Federal action may affect a section 9 of the Act. The intent of this for collection of flowering individuals listed species or its critical habitat, the policy is to increase public awareness of from protected populations will responsible Federal agency must enter the effect of the listing on proposed and increase. Several of the small into formal consultation with the ongoing activities within a species’ populations at the Presidio of Monterey Service. range. Colonies of Piperia yadonii are and the Naval Postgraduate School are Only one of the taxa, Piperia yadonii, known to occur on Federal lands. The located adjacent to roads and easily occurs on Federal lands. Four small Service believes that, based upon the accessible. Even limited collecting from colonies, totaling fewer than 500 plants, best available information, the following small populations could have have been identified at the Department actions will not result in a violation of significant negative impacts. of the Army’s Presidio of Monterey, at section 9, provided these activities are The publication of precise critical the Naval Post-Graduate School in carried out in accordance with existing habitat descriptions and maps required Monterey, and on Fort Ord. The site at regulations and permit requirements: in a proposal for critical habitat could Fort Ord was located in the early 1990s, (1) Activities authorized, funded, or increase the potential threat to these but this species has not been identified carried out by Federal agencies (e.g., populations from possible there for several years (Jones and Stokes grazing management, agricultural overcollection and, thereby contribute Assoc. 1996). The land where it conversions, wetland and riparian to their decline. The Service believes, occurred is to be preserved within a habitat modification, flood and erosion therefore, that the designation of critical development area and will be control, residential development, habitat for the few populations of transferred to a local entity for that recreational trail development, road Piperia yadonii on Federal lands is not purpose in the near future. Federal construction, hazardous material prudent because any small benefit such agency actions that may require containment and cleanup activities, designation might confer is significantly consultation include military training, prescribed burns, pesticide/herbicide outweighed by the potential for construction of roads, and other application, pipelines or utility line increasing the degree of threat to these developments that could affect these crossing suitable habitat,) when such populations from overcollection. In small colonies. activity is conducted in accordance with addition, the Navy is aware of the The Act and its implementing any reasonable and prudent measures location of these plants. regulations set forth a series of general given by the Service according to prohibitions and exceptions that apply section 7 of the Act; Available Conservation Measures to all endangered or threatened plants. (2) Casual, dispersed human activities Conservation measures provided to With respect to the four plant taxa on foot or horseback (e.g., bird species listed as endangered or proposed to be listed as endangered, all watching, sightseeing, photography, threatened under the Act include trade prohibitions of section 9(a)(2) of camping, hiking). recognition, recovery actions, the Act, implemented by 50 CFR 17.61 (3) Activities on private lands that do requirements for Federal protection, and and 17.71, would apply. These not require Federal authorization and do prohibitions against certain activities. prohibitions, in part, make it illegal not involve Federal funding, such as Recognition through listing encourages with respect to any endangered plant for grazing management, agricultural and results in conservation actions by any person subject to the jurisdiction of conversions, flood and erosion control, Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43115 residential development, road goveniana ssp. goveniana on occasion, and threatened species, see 50 CFR construction, pesticide/herbicide but it apparently is not popular enough 17.32. application, and pipeline or utility line to be kept in stock on a regular basis. References Cited construction across suitable habitat. The Pebble Beach Company is actively (4) Residential landscape cultivating this plant to be used in A complete list of all references cited maintenance, including the clearing of efforts to restore disturbed habitat (G. herein is available upon request from vegetation around one’s personal Fryberger, in litt. 1992). the Ventura Fish and Wildlife Office residence as a fire break. Requests for copies of the regulations (see ADDRESSES section). The Service believes that the regarding listed plants and inquiries Authors. The primary authors of this following might potentially result in a about prohibitions and permits may be notice are Diane Steeck and Constance violation of section 9; however, possible addressed to the U.S. Fish and Wildlife Rutherford, Ventura Fish and Wildlife violations are not limited to these Service, Endangered Species Permits, Office (see ADDRESSES section). actions alone: 911 NE 11th Avenue, Portland, OR (1) Unauthorized collecting of the List of Subjects in 50 CFR Part 17 97232–4181 (telephone 503/231–6241, species on Federal lands; facsimile 503/231–6243). Endangered and threatened species, (2) Application of herbicides violating Exports, Imports, Reporting and label restrictions; National Environmental Policy Act recordkeeping requirements, (3) Interstate or foreign commerce and Transportation. import/export without previously The Fish and Wildlife Service has obtaining an appropriate permit. determined that Environmental Regulation Promulgation Permits to conduct activities are Assessments, as defined under the Accordingly, the Service amends part available for purposes of scientific authority of the National Environmental 17, subchapter B of chapter I, title 50 of research and enhancement of Policy Act of 1969, need not be the Code of Federal Regulations, as set propagation or survival of the species. prepared in connection with regulations forth below: Intentional collection, damage, or adopted pursuant to section 4(a) of the destruction on non-Federal lands may Endangered Species Act of 1973, as PART 17Ð[AMENDED] be a violation of State law or regulations amended. A notice outlining the or in violation of State criminal trespass Service’s reasons for this determination 1. The authority citation for Part 17 law and therefore a violation of section was published in the Federal Register continues to read as follows: 9. The Act and 50 CFR 17.62, 17.63, and on October 25, 1983 (48 FR 49244). Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 17.72 provide for the issuance of Required Determinations permits to carry out otherwise 625, 100 Stat. 3500; unless otherwise noted. prohibited activities involving This rule does not contain any new 2. Amend § 17.12 (h) by adding the endangered or threatened plant species collections of information other than following, in alphabetical order under under certain circumstances. Such those already approved under the FLOWERING PLANTS, to the List of permits are available for scientific Paperwork Reduction Act, 44 U.S.C. Endangered and Threatened Plants to purposes and to enhance the 3501 et seq., and assigned Office of read as follows: propagation or survival of the species. It Management and Budget clearance is anticipated that few trade permits number 1018–0094. For additional § 17.12 Endangered and threatened plants. will be sought. Several central coast information concerning permits and * * * * * nurseries have cultivated Cupressus associated requirements for endangered (h) * * *

Species Historic range Family Status When listed Critical Special Scientific name Common name habitat rules

******* FLOWERING PLANTS

******* Astragalus tener var. Coastal dunes milk- U.S.A. (CA) ...... FabaceaeÐPea ...... E 640 NA NA titi. vetch.

******* Cupressus Gowen cypress ...... U.S.A. (CA) ...... CupressaceaeÐCy- T 640 NA NA goveniana ssp. press. goveniana.

******* Piperia yadonii ...... Yadon's piperia ...... U.S.A. (CA) ...... OrchidaceaeÐOr- E 640 NA NA chid.

******* Potentilla hickmanii .. Hickman's potentilla U.S.A. (CA) ...... AsteraceaeÐAster .. E 640 NA NA

******* Trifolium trichocalyx Monterey clover ...... U.S.A. (CA) ...... FabaceaeÐPea ...... E 640 NA NA

******* 43116 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations

Dated: July 29, 1998. FOR FURTHER INFORMATION CONTACT: Pat giant BFT by vessels in the General Jamie Rappaport Clark, Scida, 978–281–9260, or Sarah category must cease at 11:30 p.m. local Director, Fish and Wildlife Service. McLaughlin, 301–713–2347. time August 8, 1998. The General [FR Doc. 98–21564 Filed 8–11–98; 8:45 am] SUPPLEMENTARY INFORMATION: category will reopen September 1, 1998, BILLING CODE 4310±55±P Regulations implemented under the with a quota of 194 mt for the authority of the Atlantic Tunas September period. If necessary, the Convention Act (16 U.S.C. 971 et seq.) September subquota will be adjusted DEPARTMENT OF COMMERCE governing the harvest of BFT by persons based on actual landings from the and vessels subject to U.S. jurisdiction current period. While the General National Oceanic and Atmospheric are found at 50 CFR part 285. Section category is open, General category Administration 285.22 subdivides the U.S. quota permit holders are restricted from all recommended by the International BFT fishing, including tag-and-release 50 CFR Part 285 Commission for the Conservation of fishing, on restricted-fishing days. However, for the remainder of August, [I.D. 080498B] Atlantic Tunas among the various domestic fishing categories. previously designated restricted-fishing days are waived; therefore, General Atlantic Tuna Fisheries; Atlantic General Category Closure Bluefin Tuna; Closure category permit holders may tag and NMFS is required, under release BFT while the General category AGENCY: National Marine Fisheries § 285.20(b)(1), to monitor the catch and is closed, prior to the September 1 Service (NMFS), National Oceanic and landing statistics and, on the basis of opening. Atmospheric Administration (NOAA), these statistics, to project a date when The intent of this closure is to prevent Commerce. the catch of BFT will equal the quota overharvest of the June-August period ACTION: General category closure. and publish a Federal Register subquota established for the General announcement to close the applicable category. SUMMARY: NMFS has determined that fishery. Classification the 1998 Atlantic bluefin tuna (BFT) Implementing regulations for the June-August period General category Atlantic tuna fisheries at 50 CFR 285.22 This action is taken under 50 CFR subquota will be attained by August 8, provide for a subquota of 388 mt of large 285.20(b) and 50 CFR 285.22 and is 1998. Therefore, the General category medium and giant BFT to be harvested exempt from review under E.O. 12866. fishery for June-August will be closed from the regulatory area by vessels Authority: 16 U.S.C. 971 et seq. effective at 11:30 p.m. on August 8, permitted in the General category 1998. This action is being taken to during the period beginning June 1 and Dated: August 6, 1998. prevent overharvest of the General ending August 31. Based on reported Gary C. Matlock, category June-August period subquota. catch and effort, NMFS projects that this Director, Office of Sustainable Fisheries, DATES: Effective 11:30 p.m. local time subquota will be reached by August 8, National Marine Fisheries Service. on August 8, 1998, through August 31, 1998. Therefore, fishing for, retaining, [FR Doc. 98–21576 Filed 8–7–98; 10:38 am] 1998. possessing, or landing large medium or BILLING CODE 3510±22±F 43117

Proposed Rules Federal Register Vol. 63, No. 155

Wednesday, August 12, 1998

This section of the FEDERAL REGISTER and Independence Avenue SW., genus Citrus into the United States from contains notices to the public of the proposed Washington, DC, between 8 a.m. and specified countries, including issuance of rules and regulations. The 4:30 p.m., Monday through Friday, Argentina, in order to prevent the purpose of these notices is to give interested except holidays. Persons wishing to introduction of the citrus diseases sweet persons an opportunity to participate in the inspect comments are requested to call orange scab (Elsinoe australis Bitanc. rule making prior to the adoption of the final rules. ahead on (202) 690–2817 to facilitate and Jenkins) and the B strain of citrus entry into the comment reading room. canker, which is referred to in the citrus FOR FURTHER INFORMATION CONTACT: Mr. fruit regulations as ‘‘Cancrosis B.’’ DEPARTMENT OF AGRICULTURE Ron Campbell, Import Specialist, In this document, the A and B strains Phytosanitary Issues Management Team, of citrus canker are referred to Animal and Plant Health Inspection PPQ, APHIS, 4700 River Road Unit 140, collectively as citrus canker, except in Service Riverdale, MD 20737–1236; (301) 734– those instances where it is necessary to 6799; e-mail: refer specifically to either of the two 7 CFR Parts 300 and 319 [email protected]. strains. [Docket No. 97±110±1] SUPPLEMENTARY INFORMATION: Citrus Canker Free Area RIN 0579±AA92 Background The Government of Argentina has requested that the Animal and Plant Importation of Grapefruit, Lemons, and The regulations in ‘‘Subpart—Fruits Health Inspection Service (APHIS) Oranges from Argentina and Vegetables’’ (7 CFR 319.56 through 319.56–8, referred to below as the fruits recognize the citrus production areas in AGENCY: Animal and Plant Health and vegetables regulations) prohibit or four States in northwestern Argentina— Inspection Service, USDA. restrict the importation of fruits and Catamarca, Jujuy, Salta, and Tucuman— ACTION: Proposed rule. vegetables into the United States from as free from citrus canker. In support of certain parts of the world to prevent the its request, the Argentine Government SUMMARY: We are proposing to amend introduction and dissemination of plant submitted the results of surveys the citrus fruit regulations by pests, including fruit flies, that are new conducted in the citrus-producing areas recognizing a citrus-growing area within to or not widely distributed within the of those four States since 1992 by Argentina as being free from citrus United States. Argentina’s national plant protection canker. Surveys conducted by Argentine The regulations in ‘‘Subpart—Citrus organization, the Servicio Nacional de plant health authorities in that area of Fruit’’ (7 CFR 319.28, referred to below Sanidad y Calidad Agroalimentaria Argentina since 1992 have shown the as the citrus fruit regulations), restrict (SENASA). area to be free from citrus canker, and the importation of the fruit and peel of APHIS has reviewed the Argentine authorities are enforcing all genera, species, and varieties of the documentation submitted by the restrictions designed to protect the area subfamilies Aurantioideae, Rutoideae, Government of Argentina in support of from the introduction of that disease. and Toddalioideae of the family its request and conducted an on-site We are also proposing to amend the Rutaceae into the United States from evaluation in 1994 of Argentina’s plant fruits and vegetables regulations to specified countries in order to prevent health programs in Catamarca, Jujuy, allow the importation of grapefruit, the introduction of citrus canker disease Salta, and Tucuman with regard to lemons, and oranges from the citrus (Xanthomonas campestris pv. citri citrus diseases. 1 The evaluation canker-free area of Argentina under (Hasse) Dye). consisted of a review of Argentina’s conditions designed to prevent the Argentina is not currently listed in citrus canker survey activities, introduction into the United States of § 319.28(a)(1) of the citrus fruit laboratory and testing procedures for the two other diseases of citrus, sweet regulations as a country from which examination of samples collected during orange scab and citrus black spot, and importations are restricted to prevent the surveys, and the administration of other plant pests. These proposed the introduction of citrus canker, but laws and regulations intended to changes would allow grapefruit, lemons, scientific literature indicates that the A prevent the introduction of citrus canker and oranges to be imported into the strain of citrus canker—i.e., that which into the citrus-growing areas of United States from Argentina subject to is referred to in § 319.28(a)(1)—occurs Catamarca, Jujuy, Salta, and Tucuman certain conditions. in Argentina. Therefore, in this from the rest of Argentina and from DATES: Consideration will be given only document, we are proposing to amend outside the country. After reviewing the to comments received on or before § 319.28(a)(1) by adding Argentina to documentation provided by Argentina October 13, 1998. the list of countries from which and the data gathered during the on-site ADDRESSES: Please send an original and importations are restricted to prevent visit, we believe that the Government of three copies of your comments to the introduction of citrus canker. Argentina has demonstrated, in Docket No. 97–110–1, Regulatory However, as explained below under the accordance with the standards Analysis and Development, PPD, heading ‘‘Citrus Canker Free Area,’’ the established by the United Nations’ Food APHIS, Suite 3C03, 4700 River Road entry for Argentina would contain an and Agriculture Organization (FAO) for Unit 118, Riverdale, MD 20737–1238. exception for the States of Catamarca, Please state that your comments refer to Jujuy, Salta, and Tucuman. 1 Information regarding the documentation submitted by the Government of Argentina and the Docket No. 97–110–1. Comments The citrus fruit regulations also on-site visit conducted by APHIS may be obtained received may be inspected at USDA, restrict the importation of the fruit and from the person listed under FOR FURTHER room 1141, South Building, 14th Street peel of all species and varieties of the INFORMATION CONTACT. 43118 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules pest-free areas, that the citrus-growing content of the citrus fruit regulations, We would require that the grove be areas of Catamarca, Jujuy, Salta, and the disease sweet orange scab exists in registered with the citrus fruit export Tucuman are free from citrus canker. Argentina. In addition to sweet orange program of SENASA. Grower Based on the information provided by scab, Argentina is also affected with a registration would, from an Argentina and the information gathered fungal disease known as citrus black administrative standpoint, allow by APHIS, we are proposing to amend spot (Guignardia citricarpa), the SENASA to identify specific groves and § 319.28(a) to reflect the citrus canker- Mediterranean fruit fly (Medfly) thus track each grove’s compliance with free status of Catamarca, Jujuy, Salta, (Ceratitis capitata), and certain fruit the requirements of the export program and Tucuman. Currently, the flies of the genus Anastrepha. To during the growing season and during regulations in § 319.28(a)(3) list the prevent the introduction into the United the movement of fruit to the entire country of Argentina, among States of those diseases and fruit flies, packinghouses and subsequent export. other places, as being affected with the Government of Argentina, with the We would also require that the grove Cancrosis B. Therefore, we would cooperation of APHIS, has formulated a be surrounded by a 150-meter-wide amend the entry for Argentina in systems approach of tiered and buffer area that would be subject to the § 319.28(a)(3) to indicate that the States overlapping measures that, when same treatments as would be applied in of Catamarca, Jujuy, Salta, and Tucuman combined with specified cold the export grove. This buffer area, in are considered to be free from Cancrosis treatments, would reduce the risks which citrus fruit could be grown but B. Similarly, the proposed new entry for presented by those pests to a negligible from which no citrus fruit could be Argentina in § 319.28(a)(1), as discussed level. offered for importation into the United above, would also indicate that those Therefore, we are proposing to allow States, would separate the export grove four States are considered to be free fresh grapefruit, lemons, and oranges to from surrounding agricultural or from citrus canker (i.e., the A strain). be imported into the United States from nonagricultural areas. Because those We are also proposing to amend Argentina if they are grown, packed, areas lying outside the buffer area § 319.28(a)(2) of the citrus fruit and shipped under specified would not be subject to the same regulations, which prohibits the phytosanitary conditions designed to measures as would be applied in the importation of citrus fruit and peel from mitigate the risk of plant pest export grove and buffer area, there is the certain countries, including Argentina, introduction. The proposed conditions possibility that sweet orange scab or based on the presence of sweet orange for importation, which would be set out citrus black spot may be present in scab in those countries. As discussed in in a new § 319.56–2f in the fruits and those areas. Thus, by providing for the the next paragraph, we are proposing to vegetables regulations, are explained suppression of disease inoculum over a amend the fruits and vegetables below. wide area, the buffer area would offer regulations to allow the importation of the export grove an additional measure grapefruit, lemons, and oranges from Permit Requirement of protection from those diseases. Argentina under conditions designed to The fruits and vegetables regulations In order to prevent the introduction of prevent the introduction of sweet orange require persons contemplating the diseased trees into an export grove, we scab. Therefore, in order to prevent a importation of fruits or vegetables that would require that any new citrus conflict between the citrus fruit are authorized entry under the planting stock used in the grove be regulations and the fruits and vegetables regulations to first apply for a permit obtained from a ‘‘clean’’ source. This regulations, we are proposing to add an from APHIS. That permit requirement, proposed requirement is already being exception to the prohibition on citrus which is found in § 319.56–3 of the implemented by SENASA as part of its fruit and peel from Argentina in fruits and vegetables regulations, would administration of laws and regulations § 319.28(a)(2). Specifically, we would be applicable to the importation of intended to prevent the introduction of add the words ‘‘except as provided by grapefruit, lemons, and oranges under citrus canker into the citrus-growing § 319.56–2f of this part’’ after the entry the provisions of this proposed rule. areas of Catamarca, Jujuy, Salta, and for Argentina in the list of countries Tucuman from the rest of Argentina and considered to be affected with sweet Origin Requirement. from outside the country. orange scab. That proposed exception The grapefruit, lemons, or oranges Under our proposed regulations, would refer the reader to § 319.56–2f of would have to have been grown in a planting stock would have to be the fruits and vegetables regulations, grove located in a region of Argentina obtained from a source (e.g., the grove which is the section we are proposing that has been determined to be free from itself, another grove, or a nursery) to add that would contain the citrus canker. As discussed above, we located within the States of Catamarca, conditions under which grapefruit, believe that the Government of Jujuy, Salta, or Tucuman, or from a lemons, and oranges could be imported Argentina has demonstrated, in SENASA-approved citrus stock into the United States from Argentina. accordance with FAO standards, that propagation center. We would allow the the citrus-growing areas of Catamarca, use of planting stock that originated Importation of Grapefruit, Lemons, and Jujuy, Salta, and Tucuman are free from within Catamarca, Jujuy, Salta, or Oranges citrus canker. This proposed Tucuman because those States have The Government of Argentina has requirement would ensure that the been determined to be free of citrus requested that APHIS allow the grapefruit, lemons, or oranges would not canker and because Argentine importation of grapefruit, lemons, and present a risk of introducing citrus Government regulations restrict the oranges into the United States from the canker into the United States. entry of potential citrus canker host citrus canker-free States of Catamarca, material into those States. Similarly, any Jujuy, Salta, and Tucuman. Because Grove requirements citrus plants imported into Argentina, there are plant pests of concern other The grapefruit, lemons, or oranges and any domestic-origin citrus plants than citrus canker known to exist in would have to have been grown in a from outside the four citrus canker-free Argentina, the proposed importation of grove that meets several specified States, must meet strict phytosanitary grapefruit, lemons, and oranges would conditions intended to prevent the requirements before they may enter the be subject to certain conditions. As introduction of sweet orange scab and States of Catamarca, Jujuy, Salta, or noted above in our discussion of the citrus black spot into the United States. Tucuman. Under SENASA supervision, Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43119 such citrus plants are officially tested to according to a randomized sampling development of any spores that may be ensure their freedom from quarantine protocol determined by SENASA. present. After the fruit has been treated, pests and diseases, and are grown in Post-harvest Handling of Fruit and before it is packed into clean, new quarantine before being released for use shipping cartons for export, we would in the citrus canker-free area of After being harvested from an export require that SENASA inspectors Argentina. We believe that requiring grove, the grapefruit, oranges, or lemons examine the grapefruit, lemons, or growers to obtain any new grapefruit, would have to be handled in accordance oranges a final time for any evidence of lemon, or orange propagative material with several specific conditions. disease. The clean, new shipping We would require that the grapefruit, from one of these sources would help cartons would have to be marked with lemons, or oranges be moved from the ensure that disease is not introduced the registration number of the grove in export grove to the packinghouse in into an export grove by new citrus which the fruit was grown in order for planting stock. field boxes or containers of field boxes that are marked to show the SENASA APHIS or SENASA to trace the fruit Fallen fruit, leaves, and branches back to its origin in the event that pests could serve as potential reservoirs of registration number of the grove in which they were grown. The identity of or diseases are detected in the fruit after disease inoculum, especially for citrus the origin of the fruit would have to be it leaves the packinghouse. black spot. Therefore, we would require maintained during the time the fruit is those materials to be removed from the Phytosanitary Certificate being handled and prepared for grove floor and from the ground in the shipment in the packinghouse. These We would require grapefruit, lemons, buffer area before the trees in the grove proposed requirements would ensure and oranges offered for entry into the blossom, which is the phase of the that SENASA inspectors would be able United States from Argentina to be growing cycle in which citrus black spot to trace the fruit back to its grove of infection primarily occurs. Removing accompanied by a phytosanitary origin in the event that disease was fallen fruit, leaves, and branches before certificate issued by SENASA that states detected on the fruit. the trees in the grove blossom would the grapefruit, lemons, or oranges were We would prohibit a packinghouse in produced and handled in accordance help to ensure that the grove is as clean which grapefruit, lemons, or oranges are as possible prior to the development of with the origin requirement, grove processed for export to the United States requirements, and post-harvest handling the fruit that would eventually be from accepting any fruit from exported to the United States. We would requirements discussed above. The nonregistered export groves during the phytosanitary certificate would also further require that the grove and buffer time that fruit intended for export to the area be inspected by SENASA before have to state that the grapefruit, lemons, United States is being handled in the or oranges were examined and found to blossom to verify that the required packinghouse. Barring the entry of fruit be free from citrus black spot and sweet sanitation measures had been from nonregistered groves into the orange scab. The phytosanitary accomplished. packinghouse would ensure that the certificate would serve as SENASA’s We would further require that the fruit intended for export is not official confirmation that the grove and buffer area be treated at least commingled with or potentially infected twice with an oil-copper oxychloride by fruit that was grown in a grove that requirements of the regulations in spray during the growing season in has not been subject to the same proposed § 319.56–2f(a), (b), and (c) had which fruit was being produced for sanitation, inspection, and treatment been met. export to the United States. Treatment measures that would be required for Cold Treatment with oil-copper oxychloride has been export groves. shown to provide control of sweet After its arrival at the packinghouse, As noted above, Medfly and fruit flies orange scab and citrus black spot in we would require the fruit to be held in of the genus Anastrepha are known to Argentina. In order to obtain the the packinghouse at room temperature exist in Argentina. Therefore, we would maximum benefit from each treatment, for 4 days. This proposed 4-day holding require grapefruit, lemons (except the timing of the treatments would be period would allow sufficient time for smooth-skinned lemons), and oranges determined by SENASA based on its the symptoms of citrus black spot to offered for entry from Argentina to be monitoring of climatic data, fruit become evident in the grapefruit, treated with an authorized cold susceptibility, and the presence of lemons, or oranges in the event that any treatment listed in the Plant Protection disease inoculum. SENASA personnel latent infection exists in the fruit. At the and Quarantine (PPQ) Treatment would have to monitor the application conclusion of the 4-day holding period, Manual in order to prevent the of the treatments to ensure that the the fruit would have to be examined by introduction of fruit flies into the treatments were being applied correctly SENASA inspectors to verify its United States. (Smooth-skinned lemons and at the proper time. freedom from visible signs of disease. would be exempted from the proposed Finally, as an additional means of Once the SENASA inspectors have cold treatment requirement because verifying an export grove’s freedom determined that the fruit is free from they have been shown through from sweet orange scab and citrus black visible signs of disease, we would Agricultural Research Service studies 2 spot, we would require that each grove require the grapefruit, lemons, or to not be a host of Medfly, and lemons and buffer area be surveyed by SENASA oranges to be chemically treated. are not reported to be hosts of 20 days before the harvest of the grove’s Specifically, the fruit would be Anastrepha spp. fruit flies.) The cold grapefruit, lemons, or oranges. The sequentially treated with: (1) Immersion treatment that would be required, which required survey would consist of a in sodium hypochlorite (chlorine) at a is designated as T107(c) in the PPQ visual inspection of the grove and the concentration of 200 parts per million; Treatment Manual, is approved for use buffer area to check for visible signs of (2) immersion in orthophenilphenate of on a variety of fruits—including the presence of either disease, followed sodium; (3) spraying with imidazole; grapefruit and oranges—to treat for by the laboratory examination of a and (4) application of 2–4 thiazalil sample of fruit. Fruit would be sampled benzimidazole and wax. These 2 Information on this research may be obtained at the rate of 320 fruit from each 200 treatments would surface-sterilize the from the person listed under FOR FURTHER hectares, and the fruit would be selected fruit and protect against the INFORMATION CONTACT. 43120 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

Anastrepha spp. fruit flies. The imported in accordance with the include: USDA, National Agricultural treatment is as follows: regulations. Statistics Service production statistics; USDA, Economic Research Service, Disease detection Exposure ‘‘Foreign Agricultural Trade of the Temperature period If citrus black spot or sweet orange (days) United States;’’ USDA, Agricultural scab is detected on any grapefruit, Marketing Service, marketing 32 °F or below ...... 11 lemons, or oranges during the course of information; USDA, Foreign 33 °F or below ...... 13 any of the inspections or tests required Agricultural Service (FAS), ‘‘Annual 34 °F or below ...... 15 by proposed § 319.56–2f, the grove in Citrus Report;’’ and United Nations, 35 °F or below ...... 17 which the fruit was grown, or was being Food and Agricultural Organization grown, would have to be removed from (FAO), production and trade statistics. Because the exposure times in T107(c) the SENASA citrus export program for are longer than those in T107(a), the the duration of that year’s growing and U.S. Citrus Industry cold treatment for Medfly, the treatment harvest season. We would also prohibit, Citrus production would serve to prevent the introduction for the remainder of that growing and of all the fruit flies of concern. harvest season, the importation of any The United States produced an We would have to amend the PPQ fruit harvested from a grove determined annual average of 31,460 million Treatment Manual in order to include to be affected with one of those diseases. pounds of citrus between 1992 and grapefruit, lemons (except smooth- These proposed measures would be a 1996, with an average annual total value skinned lemons), and oranges from necessary step in response to the of $2.5 billion. Four States—Arizona, Argentina in that document’s list of detection of any of the diseases that the California, Florida and Texas— countries and fruits for which cold proposed regulations are designed to accounted for almost all of the treatment is authorized. Therefore, exclude. commercial citrus fruit production. Of because the PPQ Treatment Manual is these, California (21 percent) and incorporated by reference into the Executive Order 12866 and Regulatory Florida (76 percent) accounted for regulations in Title 7, chapter III, we Flexibility Act approximately 97 percent of the citrus would also have to amend § 300.1, This proposed rule has been reviewed production. A small amount of citrus ‘‘Materials incorporated by reference; under Executive Order 12866. The rule fruit is produced in Hawaii and availability,’’ to reflect the date of that has been determined to be significant Louisiana. The major varieties of citrus amendment to the PPQ Treatment for the purposes of Executive Order fruit include oranges (73 percent), Manual. 12866 and, therefore, has been reviewed grapefruit (12 percent), lemons (10 The cold treatment would have to be by the Office of Management and percent) tangerines (2.16 percent), conducted in accordance with the Budget. tangelos (0.88 percent), temples (0.65 existing requirements of § 319.56–2d of This proposed rule would amend the percent), and limes (0.08 percent). The the fruits and vegetables regulations, citrus fruit regulations by recognizing a first four—oranges, grapefruit, lemons, which applies to the importation of citrus-growing area within Argentina as and tangerines—account for about 98 fresh fruits for which cold treatment is being free from citrus canker. This percent of the total U.S. citrus a condition of entry. That section sets proposed rule would also amend the production. The 1996 value of U.S.- forth the general requirements fruits and vegetables regulations to produced citrus was: Oranges, $1.82 concerning the place and manner of allow the importation of grapefruit, billion; grapefruit, $296 million; cold treatment, safeguarding of lemons, and oranges from the citrus lemons, $251 million; limes, $4 million; untreated fruit, precooling and canker-free area of Argentina under tangelos, $15 million; tangerines, $111 refrigeration, and special requirements conditions designed to prevent the million; and temples, $14 million. The for treatment at certain ports. introduction into the United States of United States accounted for nearly 24 percent of world citrus production. Inspection at Port of First Arrival two other diseases of citrus, sweet orange scab and citrus black spot, and In 1992 (the latest census year), citrus Grapefruit, lemons, and oranges other plant pests. These proposed fruit was produced on 17,898 farms (528 offered for entry into the United States changes would allow grapefruit, lemons, in Arizona; 8,104 in California; 8,205 in from Argentina would be subject to and oranges to be imported into the Florida; 509 in Texas; 458 in Hawaii; § 319.56–6 of the fruits and vegetables United States from Argentina subject to and 94 in Louisiana). Approximately 96 regulations, which provides, among certain conditions. percent of U.S. citrus fruit farms other things, that all imported fruits and (Standard Industrial Classification 0272) vegetables, as a condition of entry, shall Analysis had gross sales of less than $500,000 be inspected and shall be subject to This analysis considers the potential and thus are considered to be small disinfection at the port of first arrival, as economic impact on domestic producers entities according to the Small Business may be required by a U.S. Department of citrus of allowing the importation of Administration size standards (13 CFR of Agriculture (USDA) inspector to fresh citrus fruits from Argentina into 121.601). These small citrus farms detect and eliminate plant pests. Section the United States. It focuses on citrus accounted for less than 34 percent of the 319.56–6 also provides that any production, price, and potential total citrus growing acreage, while the shipment of fruits and vegetables may consumer and producer impacts of the remaining 4 percent of citrus farms (i.e., be refused entry if the shipment is so proposed rule. The possible impacts those with annual gross sales of infested with fruit flies or other considered include losses to domestic $500,000 or more) accounted for about injurious plant pests that an inspector producers and gains to consumers due 66 percent of the acreage. determines that it cannot be cleaned or to decreased prices. The magnitude of Production for the fresh citrus fruit treated. The inspector at the port of the impact would depend on the size of market accounted for about 28 percent arrival would also review the additional Argentine supply, the U.S. of total citrus production or documentation, including the supply and demand for citrus, and price approximately 4.5 million tons. The phytosanitary certificate, accompanying conditions in the rest of the world. The share of citrus fruits destined for the the fruit to ensure that it was being data sources used for the analysis fresh market (as opposed to the Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43121 processing or export markets) varied by Citrus trade commodities is encouraging. Combined State and by fruit. Nearly 69 percent of Since consumption of citrus fruits with the lower growth rate of domestic citrus production in Arizona, 72 percent increased by only 1.5 percent between consumption, the importance to in California, 14 percent in Florida, and 1985 and 1996 and production producers of growth in export markets 69 percent in Texas was for the fresh increased at 3.5 percent, domestic is clear. market. Overall, about 20 percent of consumption is not keeping up with the Interestingly, imports to the United oranges, 47 percent of grapefruit, 54 growth rate of production. As a result, States increased at an average annual percent of lemons, and 70 percent of foreign markets play an increasingly growth rate of 10 percent during this tangerines was for the fresh market. important role for U.S. producers, period. Most of the imports were from U.S. production of citrus fruits accounting for approximately 29 percent countries in the Southern Hemisphere, showed an annual growth rate of 3.5 of the 1996 annual fresh citrus fruit where growing and harvesting seasons percent between 1985 and 1996. Of the sales. The total value of the U.S. fresh are different. Imports are heaviest major citrus fruits, oranges increased at citrus fruit exports was approximately during the months when U.S. an average annual rate of 4.5 percent $704 million in 1996, accounting for production and shipments are lowest. and tangerines at 3.8 percent, while approximately 14 percent of world There is also a reciprocal window of grapefruits and lemons did not show citrus fruit exports in 1996. In terms of opportunity for U.S. producers to step any increase. The annual average value, oranges accounted for 41 percent in during the months when production consumption of citrus fruits in the of citrus exports; grapefruit for 35.6 is low in these countries. The United United States has stayed at around 25.2 percent; lemons and limes for 17.5 States is developing its trade pounds per person over the last 25 years percent; mandarins and tangerines for relationship with Argentina, which is with very little variability (plus or 5.2 percent; and other citrus for 0.4 one of few countries with which the minus 2.6 pounds per person). Specific percent. By weight, about 44 percent of United States has a favorable balance of per capita fresh citrus fruit consumption 1996 fresh citrus export was oranges, trade. The United States exported an varies by fruit. about 41 percent grapefruit, 12 percent average of $4,390 million worth of Fresh fruits are marketed throughout lemons and limes and 3 percent goods to Argentina while importing the year, most heavily between October tangerines and other fresh citrus fruits. goods and services valued at $1,920 and May. Overall, domestic shipments The United States is a net exporter of million. At present, the United States is of citrus fruit are at their lowest during citrus fruits. The U.S. supply of fresh exporting approximately $100,000 the months of July, August, and citrus fruits in 1996 was 6,633 million worth of citrus fruit to Argentina and September, dropping to approximately pounds (= 8,712 + 406—2,485 importing none. Worldwide, the United 3.5 to 5 percent of average annual [production plus imports minus States exported fresh citrus fruits valued shipments. U.S. citrus exports are also exports]). at $704 million in 1996, while it at their lowest during these months. A few countries accounted for the imported only $92 million worth of Citrus imports are also widely bulk of the U.S. fresh citrus export fresh citrus fruits. Thus, maintaining distributed throughout the year, but market. In Asia, Japan (44 percent), competitiveness and creating a positive with above-average imports during July, Hong Kong (10 percent), the Republic of trade environment is very important to August, and September (about 29 Korea (2.8 percent), Taiwan (2.8 U.S. citrus producers. percent). Wholesale prices follow the percent), and Singapore (1.5 percent) Argentine Citrus Industry same seasonal supply patterns, as they together accounted for approximately 60 are lower during peak production percent of the total U.S. export market. Production months—October to May—and higher Next, exports to Canada were about 25 Argentina produced an annual during summer months from June to percent. In Europe, France (3.14 average of 3,726 million pounds of September. Since the peak production percent), The Netherlands (2.87 citrus fruit between 1985 and 1996, with period for citrus in Argentina is from percent), and the United Kingdom (1.13 production at about 4,010 million May to October, the entry of Argentine percent) are the major importers. The pounds in 1996. Citrus fruit production fresh citrus fruits would likely peak small remaining proportion is exported has increased at an annual growth rate during these months, which represent to many other countries. The United of about 2.3 percent in Argentina, the most likely window of opportunity States, as noted above, is not a major mostly in the States of Entre Rios, for Argentine imports to enter the U.S. importer of fresh citrus fruits. Major Tucuman, Misiones, Salta, Corrientes, market. The annual average terminal suppliers are Mexico (42 percent), Spain Buenos Aires, and Jujuy, which together market wholesale prices in major U.S. (29.4 percent), and Australia (20 account for about 93 percent of cities is approximately 38 cents per percent). These countries together production. Three of those States— pound, while the average from June supplied about 91 percent of U.S. fresh Jujuy, Salta, and Tucuman—would be through September is 43 cents per citrus imports. Imports of fresh citrus affected by this proposed rule; those pound. Importers and brokers would fruits were valued at about $92 million. States account for 35 percent of the total likely benefit from the entry of U.S. fresh citrus fruit exports Argentine production, or about 1,550 Argentine citrus fruit into the U.S. increased at an average growth rate of million pounds of citrus fruit. Nearly 51 market because they would be able to 3.1 percent between 1985 and 1996. By percent of Argentine citrus fruit provide quality fruits during the months fruit, orange exports grew at an average production is consumed domestically as when domestic production is lowest. rate of 4.2 percent and grapefruit by 3.7 fresh fruit, 34 percent is processed, and Consumers would be able to obtain a percent, while lime and tangerine 15 percent is exported. wide choice of fresh citrus throughout exports did not change. On the other The annual rate of increase in the year and would not need to wait for hand, exports of lemons declined by an Argentine citrus production between the peak domestic production season or average rate of 1.1 percent. Since the 1985 and 1996 is attributable mostly to switch to non-citrus fruits. Producers United States is the second largest increased lemon production. For the would not need to spend additional producer of oranges and the largest other citrus varieties, the growth rate resources promoting their product as producer of grapefruits in the world, the was less than 1 percent or there was no each new harvest season arrives. positive export growth rate in these two change. However, since the current 43122 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules export growth rates are higher than the heavy dependence on a single market, 40 cents while oranges from Argentina production growth rates, large such as the United States, would make sold for 42 cents per pound. additional export supplies are not Argentina vulnerable to fluctuations in Impact on Producers and Consumers expected. Production growth rates (2.3 economic conditions of that market. percent) were outpaced by export Nevertheless, a moderate level of Allowing the importation into the growth rates (6.92 percent) in Argentina. exports to the United States would United States of citrus from Argentina The export growth rates varied by fruit provide another potential outlet for the under the conditions described in this and ranged between a 0.7 percent Argentine citrus industry. proposed rule could potentially result in annual increase for grapefruit and a 16.9 losses for citrus producers in the United percent increase for tangerines. Wholesale Terminal Market Prices States, approximately 96 percent of whom, as noted above, are considered to Fresh citrus fruit wholesale prices are Citrus Trade be small entities with less than $0.5 Argentina is one of the major citrus lower in Argentina than in the United million annually in sales. However, fruit exporters in South America. It States. The weighted annual average Argentina exports most of its fresh exported 718 million pounds in 1996 wholesale price is about 18 cents per citrus fruit during the summer months, and an average of 545 million pounds pound (where the weights reflect the so citrus from Argentina would not per year between 1992 and 1996. Major respective citrus fruit variety production compete with the late fall, winter, and destinations included The Netherlands percentages). This does not include the early spring citrus peak production (52 percent), France (14 percent), Spain overland transport cost from season in the United States, thus (8 percent), the United Kingdom (10 northwestern Argentina to the south limiting the impact on U.S. producers, percent), and Russia (8 percent). Smaller central coast, the sea freight rate, cold exporters, and importers of citrus, and importers of Argentine citrus include treatment while onboard the ship, or the on other small entities that depend on Portugal, Belgium, Germany, Hong Kong tariff rates, which would add about 15 citrus fruit sales. Citrus importers in the and Saudi Arabia. The major destination cents per pound to the average United States could be expected to for Argentine fresh citrus fruit is Argentine wholesale price. Wholesale benefit from the increased availability of Europe, accounting for nearly 87 prices in the United States average 38 citrus fruit, especially navel oranges, percent of exports. Since the majority of cents per pound, or about 20 cents per during the time of year when U.S. the U.S. fresh citrus exports went to the pound more than the average Argentine production is at its lowest; U.S. Far East, the two countries appear to be wholesale price. However, by the time consumers of fresh citrus fruits, serving distinct markets. Using the the fresh citrus from Argentina would brokerage houses, packers, and truckers production and export averages, about arrive at U.S. ports, with the additional could also be expected to benefit. 15 percent of Argentine citrus costs, the gap would narrow. Current The potential economic effects of production is exported. Imports of fresh wholesale market prices in the Montreal those imports would depend upon the citrus accounted for only about 0.06 terminal markets indicate that the size of the pre-import U.S. supply, pre- percent of the utilized total Argentine Argentine fresh citrus fruit sells for import fresh citrus fruit prices, and the citrus supply. about the same price or for slightly more elasticities of demand. Overall, the Argentina can be expected to than the California or Florida varieties. expected impacts would be a slight loss maintain its well-established export The average (from June through for producers and a slight gain for markets, mainly in Europe. Because September) California lemon price was consumers, due to increased supply and there have been substantial investments 46 cents per pound in Montreal, while potentially lower prices. The estimated to cultivate these markets, it is expected the average for the Argentine lemons impacts of introducing imported citrus that Argentine producers and exporters was 50 cents per pound. Similarly, the from Argentina into the U.S. market are will continue to value them. Developing average price for California oranges was as shown in Table 1.

TABLE 1.ÐIMPORTATION OF CITRUS FROM ARGENTINA: POTENTIAL IMPACT ON U.S. CITRUS MARKET (PRICE ELASTICITY OF DEMAND IS ¥0.233)

Imports 1 (millions of pounds) ...... 10 20 30 40 50 Percent change in price ...... (0.29) (0.58) (0.87) (1.17) (1.46) Percent change in quantity 2 ...... (0.08) (0.17) (0.25) (0.33) (0.41) Decrease in producer surplus (millions of dollars) ...... (7.347) (14.688) (22.023) (29.352) (36.674) Increase in consumer surplus (millions of dollars) ...... 7.353 14.710 22.073 29.440 36.813 Total surplus (millions of dollars) ...... 0.006 0.022 0.050 0.088 0.139 1 The projected import totals of 10, 20, 30, 40, and 50 million pounds are based on a 20, 40, 60, 80, and 100 percent diversion, respectively, to the U.S. market of the total expected increase in Argentine citrus exports to all countries. Between 1985 and 1996, Argentine citrus exports in- creased by an average of 6.92 percent per year. Using the 1996 export of 717.8 million pound as a baseline number, the expected increase in Argentine citrus exports would be 49.67 (=717.8 x 0.0692) million pounds, which we have rounded to 50 million pounds. We assume a certain proportion of this increase would be directed to the newly accessible U.S. market. 2 Decrease in quantity may be due to diversion of fresh citrus fruit to the processing sector as the price of fresh citrus fruit declines.

Table 1 includes the potential percent demand ¥0.233, given an import level supply and demand were not readily change in price, the percent change in of 10 million pounds of Argentine citrus available. The data used for estimating quantity, the resultant producer losses, entering the U.S. market, the expected these elasticities and for assessing the consumer benefits, and net benefits. price decrease would be 0.29 percent. impact were obtained from various Price decreases as the volume of (Although there are estimates for sources. Citrus production and export imported citrus fruits increases. For oranges and grapefruit, aggregate data were obtained from various issues example, for a price elasticity of elasticity estimates for citrus fruit of the FAO ‘‘Production and Trade Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43123

Yearbook,’’ from the FAS ‘‘Annual citrus-growing areas of Catamarca, effect if OMB receives it within 30 days Citrus Report,’’ and from Argentine Jujuy, Salta, and Tucuman free from of publication of this proposed rule. Embassy sources. U.S. production and citrus canker and allowing the This proposed rule would amend the trade data were obtained from various importation of grapefruit, lemons, and citrus fruit regulations by recognizing a issues of ‘‘Fruit and Tree Nuts: Situation oranges from those States subject to citrus-growing area within Argentina as and Outlook Yearbook.’’ Consumer certain conditions would likely have a being free from citrus canker and would price index, U.S. gross domestic beneficial effect on international trade amend the fruits and vegetables product, and producer price index data in general, and trade between the regulations to allow the importation of were obtained from the August 1997 United States and Argentina in grapefruit, lemons, and oranges from the issue of ‘‘Survey of Current Business.’’ particular, by reaffirming the United citrus canker-free area of Argentina The elasticity of supply and demand are States’ continuing commitment to using under certain conditions. These estimated using a simple log-log model scientifically valid principles as the proposed changes would provide for the and are 0.284 and ¥0.233, respectively.) basis for regulation. importation into the United States of In the scenario in which 10 million Under these circumstances, the grapefruit, lemons, and oranges from pounds of citrus would be exported Administrator of the Animal and Plant Argentina under conditions designed to from Argentina to the United States, Health Inspection Service has prevent the introduction into the United U.S. producers would lose about $7.347 determined that this action would not States of two other diseases of citrus, million while U.S. consumers would have a significant economic impact on sweet orange scab and citrus black spot, gain about $7.353 million. The net a substantial number of small entities. and other plant pests. benefit in this scenario would be about The proposed program for the $6,000. At the opposite extreme, an Executive Order 12988 importation of grapefruit, lemons, and export level of 50 million pounds (i.e., This proposed rule would allow the oranges from Argentina would require all of the anticipated increase in importation of grapefruit, lemons, and the use of import permits, phytosanitary Argentine citrus exports being sent to oranges from Argentina under certain certificates, and other information- the U.S. market rather than to other conditions. If this proposed rule is gathering documents to help ensure that countries) would result in a price adopted, State and local laws and the fruit has been grown and handled in decrease of about 1.46 percent. regulations regarding grapefruit, lemons, accordance with the conditions set forth Producers would lose about $36.674 and oranges imported under this rule in the regulations. million and consumers would gain would be preempted while the fruit is We are soliciting comments from the about $36.813 million, resulting in net in foreign commerce. Grapefruit, public (as well as affected agencies) benefit of about $139,000. Additionally, lemons, and oranges are generally concerning our proposed information there would be a direct relationship imported for immediate distribution and collection and recordkeeping between producer losses and consumer requirements. We need this outside gains on the one hand and the quantity sale to the consuming public, and would remain in foreign commerce until input to help us: of imports on the other hand. Therefore, (1) Evaluate whether the proposed sold to the ultimate consumer. The the larger the share of imports from information collection is necessary for question of when foreign commerce Argentina, relative to U.S. domestic the proper performance of our agency’s ceases in other cases must be addressed supply, the larger the U.S. producer functions, including whether the on a case-by-case basis. If this proposed losses and the larger the U.S. consumer information will have practical utility; rule is adopted, no retroactive effect gains. In all cases, consumer gains (2) Evaluate the accuracy of our would be given to this rule, and this would slightly outweigh grower losses. estimate of the burden of the proposed rule would not require administrative The only significant alternative to this information collection, including the proceedings before parties may file suit proposed rule would be to make no validity of the methodology and in court challenging this rule. changes in the regulations, i.e., to assumptions used; continue to prohibit the importation of Paperwork Reduction Act (3) Enhance the quality, utility, and grapefruit, lemons, and oranges from clarity of the information to be Argentina. We have rejected that In accordance with section 3507(d) of collected; and alternative because we believe that the Paperwork Reduction Act of 1995 (4) Minimize the burden of the Argentina has demonstrated that the (44 U.S.C. 3501 et seq.), the information information collection on those who are citrus-growing areas of the States of collection or recordkeeping to respond, (such as through the use of Catamarca, Jujuy, Salta, and Tucuman requirements included in this proposed appropriate automated, electronic, are free from citrus canker and because rule have been submitted for approval to mechanical, or other technological we believe that the systems approach the Office of Management and Budget collection techniques or other forms of offered by Argentina to prevent the (OMB). Please send written comments information technology, e.g., permitting introduction of other plant pests to the Office of Information and electronic submission of responses). reduces the risks posed by the Regulatory Affairs, OMB, Attention: Estimate of burden: Public reporting importation of grapefruit, lemons, and Desk Officer for APHIS, Washington, DC burden for this collection of information oranges to an negligible level. 20503. Please state that your comments is estimated to average .7009 hours per Maintaining a prohibition on the refer to Docket No. 97–110–1. Please response. importation of grapefruit, lemons, and send a copy of your comments to: (1) Respondents: Argentine plant health oranges from the Argentine States of Docket No. 97–110–1, Regulatory authorities, growers/exporters of citrus Catamarca, Jujuy, Salta, and Tucuman Analysis and Development, PPD, in the citrus canker-free area of in light of those State’s demonstrated APHIS, suite 3C03, 4700 River Road Argentina. freedom from citrus canker would run Unit 118, Riverdale, MD 20737–1238, Estimated annual number of counter to the United States’ obligations and (2) Clearance Officer, OCIO, USDA, respondents: 470. under international trade agreements room 404—W, 14th Street and Estimated annual number of and would likely be challenged through Independence Avenue SW., responses per respondent: 2.1702. the World Trade Organization. Washington, DC 20250. A comment to Estimated annual number of Conversely, our proposal to declare the OMB is best assured of having its full responses: 1,020. 43124 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

Estimated total annual burden on citrus canker),’’ immediately after the on its monitoring of climatic data, fruit respondents: 715. (Due to rounding, the word ‘‘Seychelles,’’. susceptibility, and the presence of total annual burden hours may not b. In paragraph (a)(2), by adding the disease inoculum. The application of equal the product of the annual number words ‘‘(except as provided by § 319.56– treatments shall be monitored by of responses multiplied by the average 2f)’’ immediately after the word SENASA to verify proper application. reporting burden per response.) ‘‘Argentina’’. (6) The grove and buffer area must be Copies of this information collection c. In paragraph (a)(3), by adding the surveyed by SENASA 20 days before the can be obtained from Clearance Officer, words ‘‘(except for the States of grapefruit, lemons, or oranges are OCIO, USDA, room 404–W, 14th Street Catamarca, Jujuy, Salta, and Tucuman, harvested to verify the grove’s freedom and Independence Avenue SW., which are considered free of Cancrosis from citrus black spot (Guignardia Washington, DC 20250. B)’’ immediately after the word citricarpa) and sweet orange scab ‘‘Argentina’’. (Elsinoe australis). The grove’s freedom List of Subjects 5. In Subpart—Fruits and Vegetables, from citrus black spot and sweet orange 7 CFR Part 300 a new § 319.56–2f would be added to scab shall be verified through: Incorporation by reference, Plant read as follows: (i) Visual inspection of the grove and diseases and pests, Quarantine. buffer area; and § 319.56±2f Administrative instructions (ii) Laboratory examination of 320 7 CFR Part 319 governing importation of grapefruit, fruits taken from each 200 hectares lemons, and oranges from Argentina. according to SENASA’s randomized Bees, Coffee, Cotton, Fruits, Honey, Fresh grapefruit, lemons, and oranges Imports, Incorporation by reference, sampling protocol. may be imported from Argentina into (c) After harvest. After harvest, the Nursery stock, Plant diseases and pests, the United States only under permit and Quarantine, Reporting and grapefruit, oranges, or lemons must be only in accordance with this section and handled in accordance with the recordkeeping requirements, Rice, all other applicable requirements of this Vegetables. following conditions: subpart. (1) The fruit must be moved from the Accordingly, we propose to amend (a) Origin requirement. The grapefruit, grove to the packinghouse in field boxes title 7, chapter III, of the Code of Federal lemons, or oranges must have been or containers of field boxes that are Regulations as follows: grown in a grove located in a region of marked to show the SENASA Argentina that has been determined to PART 300ÐINCORPORATION BY registration number of the grove in be free from citrus canker. The REFERENCE which they were grown. The identity of following regions in Argentina have the origin of the fruit must be 1. The authority citation for part 300 been determined to be free from citrus maintained. would continue to read as follows: canker: The States of Catamarca, Jujuy, (2) During the time that a Authority: 7 U.S.C. 150ee, 154, 161, 162 Salta, and Tucuman. packinghouse is used to prepare and 167; 7 CFR 2.22, 2.80, and 371.2(c). (b) Grove requirements. The grapefruit, lemons, or oranges for export grapefruit, lemons, or oranges must have 2. In § 300.1, paragraph (a), the to the United States, the packinghouse been grown in a grove that meets the may accept fruit only from groves that introductory text would be revised to following conditions: read as follows: meet the requirements of paragraph (b) (1) The grove must be registered with of this section. § 300.1 Materials incorporated by the citrus fruit export program of the (3) After arriving at the packinghouse, reference; availability. Servicio Nacional de Sanidad y Calidad the fruit must be held at room (a) Plant Protection and Quarantine Agroalimentaria (SENASA). temperature for 4 days to allow for Treatment Manual. The Plant Protection (2) The grove must be surrounded by symptom expression of citrus black spot and Quarantine Treatment Manual, a 150-meter-wide buffer area. No citrus in the event that latent infection exists which was reprinted November 30, fruit grown in the buffer area may be in the fruit. 1992, and includes all revisions through offered for importation into the United (4) After the 4-day holding period, the [date], has been approved for States. fruit must be inspected by SENASA to incorporation by reference in 7 CFR (3) Any new citrus planting stock verify its freedom from citrus black spot chapter III by the Director of the Office used in the grove must meet one of the and sweet orange scab. The fruit must of the Federal Register in accordance following requirements: then be chemically treated as follows: with 5 U.S.C. 552(a) and 1 CFR part 51. (i) The citrus planting stock originated (i) Immersion in sodium hypochlorite from within a State listed in paragraph * * * * * (chlorine) at a concentration of 200 parts (a) of this section; or per million; PART 319ÐFOREIGN QUARANTINE (ii) The citrus planting stock was (ii) Immersion in orthophenilphenate NOTICES obtained from a SENASA-approved of sodium; citrus stock propagation center. (iii) Spraying with imidazole; and 3. The authority citation for part 319 (4) All fallen fruit, leaves, and (iv) Application of 2–4 thiazalil would continue to read as follows: branches must be removed from the benzimidazole and wax. Authority: 7 U.S.C. 150dd, 150ee, 150ff, ground in the grove and the buffer area (5) Before packing, the treated fruit 151–167, 450, 2803, and 2809; 21 U.S.C. 136 before the trees in the grove blossom. must again be inspected by SENASA to and 136a; 7 CFR 2.22, 2.80, and 371.2(c). The grove and buffer area must be verify its freedom from citrus black spot inspected by SENASA before blossom to and sweet orange scab. § 319.28 [Amended] verify that these sanitation measures (6) The fruit must be packed in clean, 4. In Subpart—Citrus Fruit, § 319.28 have been accomplished. new boxes that are marked with the would be amended as follows: (5) The grove and buffer area must be SENASA registration number of the a. In paragraph (a)(1), by adding the treated at least twice during the growing grove in which the fruit was grown. words ‘‘Argentina (except for the States season with an oil-copper oxychloride (d) Phytosanitary certificate. of Catamarca, Jujuy, Salta, and spray. The timing of each treatment Grapefruit, lemons, and oranges offered Tucuman, which are considered free of shall be determined by SENASA based for entry into the United States from Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43125

Argentina must be accompanied by a Federal milk marketing order (Order Small Business Consideration phytosanitary certificate issued by 106) for the period of September 1998 In accordance with the Regulatory SENASA that states the grapefruit, through August 1999. The action was Flexibility Act (5 U.S.C. 601 et seq.), the lemons, or oranges were produced and requested by Kraft Foods, Inc. (Kraft), Agricultural Marketing Service has handled in accordance with the which contends the suspension is considered the economic impact of this requirements of paragraphs (a), (b), and necessary to prevent the uneconomical action on small entities and has certified (c) of this section, and that the and inefficient movement of milk and to that this proposed rule will not have a grapefruit, lemons, or oranges are ensure that producers historically significant economic impact on a apparently free from citrus black spot associated with the market will substantial number of small entities. For and sweet orange scab. continue to have their milk pooled the purpose of the Regulatory Flexibility (e) Cold treatment. Due to the under Order 106. Act, a dairy farm is considered a ‘‘small presence in Argentina of Mediterranean DATES: Comments must be submitted on business’’ if it has an annual gross fruit fly (Medfly)(Ceratitis capitata) and or before August 19, 1998. revenue of less than $500,000, and a fruit flies of the genus Anastrepha, dairy products manufacturer is a ‘‘small grapefruit, lemons (except smooth- ADDRESSES: Comments (two copies) should be filed with the USDA/AMS/ business’’ if it has fewer than 500 skinned lemons), and oranges offered employees. For the purposes of for entry from Argentina must be treated Dairy Programs, Order Formulation Branch, Room 2971, South Building, determining which dairy farms are with an authorized cold treatment listed ‘‘small businesses,’’ the $500,000 per in the Plant Protection and Quarantine P.O. Box 96456, Washington, DC 20090– 6456. Comments may be faxed to (202) year criterion was used to establish a Treatment Manual, which is production guideline of 326,000 pounds incorporated by reference at § 300.1 of 690–0552 or e-mailed to [email protected]. per month. Although this guideline does this chapter. The cold treatment must be not factor in additional monies that may conducted in accordance with the Reference should be given to the title of action and docket number. be received by dairy producers, it requirements of § 319.56–2d of this should be an inclusive standard for FOR FURTHER INFORMATION CONTACT: subpart. most ‘‘small’’ dairy farmers. For (f) Disease detection. If, during the Nicholas Memoli, Marketing Specialist, purposes of determining a handler’s course of any inspection or testing USDA/AMS/Dairy Programs, Order size, if the plant is part of a larger required by this section or § 319.56–6 of Formulation Branch, Room 2971, South company operating multiple plants that this subpart, citrus black spot or sweet Building, P.O. Box 96456, Washington, collectively exceed the 500-employee orange scab is detected on any DC 20090–6456, (202) 690–1932, e-mail limit, the plant will be considered a grapefruit, lemons, or oranges, the grove address [email protected]. large business even if the local plant has in which the fruit was grown or is being SUPPLEMENTARY INFORMATION: The fewer than 500 employees. grown shall be removed from the Department is issuing this proposed rule For the month of June 1998, 2,187 SENASA citrus export program for the in conformance with Executive Order dairy farmers were producers under remainder of that year’s growing and 12866. Order 106. Of these producers, 2,138 harvest season, and the fruit harvested This proposed rule has been reviewed producers (i.e., 98%) were considered from that grove may not be imported under Executive Order 12988, Civil small businesses. For the same month, into the United States from the time of Justice Reform. This rule is not intended 16 handlers were pooled under Order detection through the remainder of that to have a retroactive effect. If adopted, 106, of which, two were considered shipping season. this proposed rule will not preempt any small businesses. Done in Washington, DC, this 6th day of state or local laws, regulations, or The supply plant shipping standard August 1998. policies, unless they present an and the touch-base requirement are Joan M. Arnoldi, irreconcilable conflict with the rule. designed to attract an adequate supply Acting Administrator, Animal and Plant The Agricultural Marketing of milk to the market to meet fluid Health Inspection Service. Agreement Act of 1937, as amended (7 needs. Kraft, the proponent of this [FR Doc. 98–21595 Filed 8–11–98; 8:45 am] U.S.C. 601–674), provides that proposal, anticipates that there will be BILLING CODE 3410±34±P administrative proceedings must be an adequate supply of milk available exhausted before parties may file suit in within the general area to meet the court. Under section 608c(15)(A) of the needs to the Order 106 market and DEPARTMENT OF AGRICULTURE Act, any handler subject to an order may states supplemental milk supplies will request modification or exemption from not be needed. Agricultural Marketing Service such order by filing with the Secretary The proposal would allow a supply plant that has been associated with the 7 CFR Part 1106 a petition stating that the order, any provision of the order, or any obligation Southwest Plains market during the [DA±98±08] imposed in connection with the order is months of September 1997 through not in accordance with law. A handler January 1998 to qualify as a pool plant Milk in the Southwest Plains Marketing is afforded the opportunity for a hearing without shipping any milk to a pool Area; Proposed Suspension of Certain on the petition. After a hearing, the distributing plant during the following Provisions of the Order Secretary would rule on the petition. months of September 1998 through AGENCY: Agricultural Marketing Service, The Act provides that the district court August 1999. The proposed action USDA. of the United States in any district in would also suspend the requirement ACTION: Proposed suspension of rule. which the handler is an inhabitant, or that producers touch-base at a pool has its principal place of business, has distributing plant with at least one day SUMMARY: This document invites written jurisdiction in equity to review the of production during the month before comments on a proposal to suspend a Secretary’s ruling on the petition, their milk is eligible to be diverted to portion of the supply plant shipping provided a bill in equity is filed not nonpool plants. Thus, this rule would standard and the touch-base later than 20 days after the date of the lessen the regulatory impact of the order requirement of the Southwest Plains entry of the ruling. on certain milk handlers and would 43126 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules tend to ensure that dairy farmers would through January and 20 percent of its DEPARTMENT OF TRANSPORTATION continue to have their milk priced producer receipts to pool distributing under the order and thereby receive the plants during the months of February Coast Guard benefits that accrue from such pricing. through August to qualify as a pool 33 CFR Part 117 Interested parties are invited to plant under the order. submit comments on the probable [CGD01±97±131] regulatory and informational impact of The proposed rule would also this proposed rule on small entities. suspend the requirement that producers RIN 2115±AE47 Also, parties may suggest modifications ‘‘touch-base’’ at a pool plant with at Drawbridge Operation Regulations; of this proposal for the purpose of least one day’s production during the Acushnet River, MA. tailoring their applicability to small month before their milk is eligible for businesses. diversion to a nonpool plant. By AGENCY: Coast Guard, DOT. Notice is hereby given that, pursuant suspending the touch-base provision, ACTION: Notice of withdrawal of to the provisions of the Agricultural producer milk would not be required to proposed rule. Marketing Agreement Act, the be delivered to pool plants before going suspension of the following provisions to unregulated manufacturing plants. SUMMARY: The Coast Guard has of the order regulating the handling of According to Kraft’s letter requesting withdrawn the notice of proposed rulemaking governing the New Bedford milk in the Southwest Plains marketing the suspension, supplemental milk Fairhaven (Rt–6) Bridge, mile 0.0, over area is being considered for the months supplies will not be needed to meet the of September 1, 1998, through August the Acushnet River between New fluid needs of distributing plants. Kraft 31, 1999: Bedford and Fairhaven, Massachusetts. In § 1106.6, the words ‘‘during the anticipates that there will be an In light of comments received, the Coast month’’. adequate supply of direct-ship producer Guard reconsidered the proposed In § 1106.7(b)(1), beginning with the milk located in the general area of changes to the operating regulations and words ‘‘of February through August’’ distributing plants available to meet the determined that the changes were too and continuing to the end of the Class I needs of the market. The handler restrictive for the waterway users. It is paragraph. notes that the supply plant shipping expected that this action will better In § 1106.13, paragraph (d)(1) in its provision and the touch-base meet the present needs of navigation. entirety. requirement have been suspended since DATES: The NPRM is withdrawn All persons who want to submit 1993 and 1992, respectively. effective August 12, 1998. written data, views or arguments about Kraft states there is no need to require ADDRESSES: Documents as indicated in the proposed suspension should send producers located some distance from this preamble are available for two copies of their views to the USDA/ inspection or copying at 408 Atlantic AMS/Dairy Programs, Order pool distributing plants to touch-base Avenue, Boston, MA. between 7 a.m. Formulation Branch, Room 2971, South when their milk can more economically and 3 p.m., Monday through Friday, Building, P.O. Box 96456, Washington, be diverted directly to manufacturing except Federal holidays. The telephone DC 20090–6456, by the 7th day after plants in the production area. Thus, the number is (617) 223–8364. publication of this notice in the Federal handler contends the proposed Register. The period for filing comments suspension is necessary to prevent the FOR FURTHER INFORMATION CONTACT: is limited to 7 days because a longer uneconomical and inefficient movement John W. McDonald, Project Officer, First period would not provide the time of milk and to ensure producers Coast Guard District, (617) 223–8364. needed to complete the required historically associated with the Order SUPPLEMENTARY INFORMATION: The Route procedures before the requested 106 will continue to have their milk 6 Bridge presently opens on the hour suspension is to be effective. pooled under the order. from 6 a.m. to 10 a.m., a quarter past the hour from 11:15 a.m. to 6:15 p.m., and All written submissions made Accordingly, it may be appropriate to pursuant to this notice will be made at all other times on call. The draw also suspend the aforesaid provisions from opens at any time for vessels with a available for public inspection in the September 1, 1998 through August 31, Dairy Programs during regular business draft exceeding 15 feet and for vessels 1999. hours (7 CFR 1.27(b)). owned or operated by the U.S. List of Subjects in 7 CFR Part 1106 Government, state or local authorities. Statement of Consideration Each opening of the draw should not The proposed rule would suspend a Milk marketing orders. exceed 15 minutes except for vessels portion of the supply plant shipping The authority citation for 7 CFR Part with drafts exceeding 15 feet or in standard and the touch-base 1106 continues to read as follows: extraordinary circumstances. requirement of the Southwest Plains On April 20, 1998, the Coast Guard order for the period of September 1998 Authority: 7 U.S.C. 601–674. published a notice of proposed through August 1999. The proposed Dated: August 6, 1998. rulemaking entitled Drawbridge suspension would allow a supply plant Richard M. McKee, Operation Regulations: Acushnet River, that has been associated with the Deputy Administrator, Dairy Programs. Massachusetts, in the Federal Register Southwest Plains order during the [FR Doc. 98–21579 Filed 8–11–98; 8:45 am] 63 FR 19435. Interested persons were months of September 1997 through invited to comment on the notice of January 1998 to qualify as a pool plant BILLING CODE 3410±02±P proposed rulemaking on or before June without shipping any milk to a pool 19, 1998. The proposed changes to the distributing plant during the months of operating rules published in the notice September 1998 through August 1999. of proposed rulemaking would have Without the suspension, a supply plant required the bridge to open on signal on would be required to ship 50 percent of the hour from 6 a.m. to 7 p.m., except its producer receipts to pool distributing that from 7 a.m. to 9 a.m. and 4 p.m. to plants during the months of September 7 p.m., Monday through Friday, the Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43127 bridge need not open, except for ENVIRONMENTAL PROTECTION address: (Please telephone Douglas inbound commercial fishing vessels on AGENCY Aburano at (312) 353–6960 before the hour. The bridge would be required visiting the Region 5 office.) EPA, to open on signal at any time for vessels 40 CFR Part 62 Region 5, Air and Radiation Division, 77 with a draft of 15 feet or greater. [MN59±01±7284b; FRL±6139±3] West Jackson Boulevard, Chicago, Illinois 60604–3590. The Coast Guard received twenty (23) comment letters in response to the Approval and Promulgation of State Dated: July 23, 1998. Plans for Designated Facilities and notice of proposed rulemaking and a Robert Springer, Pollutants; Minnesota; Municipal petition signed by 76 recreational Acting Regional Administrator, Region V. Waste Combustor State Plan Submittal boaters. All the comment letters and the [FR Doc. 98–21676 Filed 8–11–98; 8:45 am] petition opposed the proposed changes AGENCY: Environmental Protection BILLING CODE 6560±50±P to the operating rules for the bridge. Agency. Comment letters were received from ACTION: Proposed rule. commercial operators, public officials, DEPARTMENT OF DEFENSE commercial facilities, recreational vessel SUMMARY: The Environmental Protection owners, and marinas located upstream Agency (EPA) proposes to approve the General Services Administration of the bridge. The petition was from Minnesota State Plan submittal for recreational boaters located at several implementing the Emission Guidelines National Aeronautics and Space marinas upstream of the bridge. The for Large Municipal Waste Combustors Administration comment letters and the petition (MWCs). The State’s plan submittal was made pursuant to requirements found in objected to any limitation of the 48 CFR Part 31 the Clean Air Act (CAA). The State’s operating hours for both commercial plan was submitted to EPA on April 28, [FAR Case 97±010] and recreational vessels at any time. 1998 in accordance with the RIN 9000±AH71 They indicated that the marine requirements for adoption and submittal operators have enough restrictions with of State plans for designated facilities in Federal Acquisition Regulation; Taxes the existing hourly openings and further 40 CFR part 60, subpart B. It establishes Associated With Divested Segments limitations on their ability to transit to performance standards for existing large their facilities would cause an undue MWCs and provides for the AGENCIES: Department of Defense (DoD), economic hardship on their operations. implementation and enforcement of General Services Administration (GSA), and National Aeronautics and Space The marinas located upstream of the those standards. The EPA finds that Administration (NASA). bridge indicated a potential loss of Minnesota’s Plan for existing large business could result since many of MWCs adequately addresses all of the ACTION: Withdrawal of proposed rule. Federal requirements applicable to such their customers likely would seek other SUMMARY: The Civilian Agency locations rather than deal with the plans. In the final rules of this Federal Register, the EPA is approving this Acquisition Council and the Defense hourly openings and the proposed two Acquisition Regulations Council have additional closed periods Monday action as a direct final without prior proposal because EPA views this as a decided to withdraw the proposed rule through Friday. The commercial published in the Federal Register at 62 operators indicated that any restrictions noncontroversial action and anticipates no adverse comments. If no adverse FR 49903, September 23, 1997 (FAR to commercial vessels would be totally comments are received in response to Case 97–010, Taxes Associated with unacceptable and would place a that direct final rule, no further activity Divested Segments). hardship on the main economic is contemplated in relation to this When a contractor discontinues interests of the New Bedford area. proposed rule. If EPA receives adverse operations through the sale or other In light of the strong opposition to the comments, the direct final rule will be transfer of ownership of a segment, the notice of proposed rulemaking, the withdrawn and all public comments contractor may be assessed state and Coast Guard reconsidered changing the received will be addressed in a local taxes on the gain resulting from operating regulations for the bridge and subsequent final rule based on this that sale or transfer. Since the Government does not share in the gain determined that the proposed rule is too proposed rule. The EPA will not resulting from the segment sale or restrictive for the waterway users. institute a second comment period on transfer, the Government should not The Coast Guard no longer believes this action. Any parties interested in commenting on this action should do so share in any tax increases resulting from that this proposed rule achieves the at this time. the segment sale or transfer. The rule requirement of balancing the proposed revisions to Federal navigational rights of waterway users DATES: Comments must be received by Acquisition Regulation 31.205–41, and the needs of land based September 11, 1998. Taxes, to add increased taxes resulting transportation. ADDRESSES: Written comments should from a contractor’s sale or other transfer be sent to: Carlton T. Nash, Chief, of ownership of a segment to the list of The notice of proposed rulemaking is Regulation Development Section, Air withdrawn and the docket is closed. unallowable costs. Programs Branch (AR–18J), EPA, Region The respondents expressed concern Dated: July 10, 1998. 5, 77 West Jackson Boulevard, Chicago, that the rule would place a significant James D. Garrison, Illinois 60604–3590. administrative burden on contractors by Captain, U.S. Coast Guard, Acting SUPPLEMENTARY INFORMATION: For requiring them to compute state and Commander, First Coast Guard District. additional information, see the Direct local taxes twice: once to determine the [FR Doc. 98–21596 Filed 8–11–98; 8:45 am] Final rule which is located in the Rules actual taxes and again to assess the taxes BILLING CODE 4910±15±M section of this Federal Register. Copies that would have been paid had the of the request and the EPA’s analysis are segment not been sold. The DoD, GSA, available for inspection at the following and NASA have decided to withdraw 43128 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules the proposed rule, pending further appearing at the top of this document the transportation of household goods. study of how best to implement this and must be submitted to the Docket These regulations were codified at 49 policy without creating an undue Clerk, U.S. DOT Dockets, Room PL–401, CFR part 1056. administrative burden for both the 400 Seventh Street, SW., Washington, Following the termination of the ICC, contractor and the Government. DC 20590–0001. All comments received the responsibility for the household FOR FURTHER INFORMATION CONTACT: The will be available for examination at the goods regulations was delegated to the FAR Secretariat, Room 4035, GS above address between 10 a.m. and 5 Secretary of Transportation pursuant to Building, Washington, DC 20405, (202) p.m., e.t., Monday through Friday, the ICCTA, Pub. L. 104–88, 109 Stat. 501–4755, for information pertaining to except Federal holidays. Those desiring 803, effective January 1, 1996. The status or publication schedules. For notification of receipt of comments must Surface Transportation Board (STB) and clarification of content, contact Ms. include a self-addressed, stamped the FHWA transferred these regulations Linda Nelson at (202) 501–1900. Please envelope or postcard. from 49 CFR chapter X, Part 1056 to 49 cite FAR case 97–010, withdrawal. FOR FURTHER INFORMATION CONTACT: Mr. CFR chapter III, Part 375 on October 21, 1996. See 61 FR 54706. On December List of Subjects in 48 CFR Part 31 Thomas Vining, Chief, Licensing and Insurance Division (HIA–30), Office of 27, 1996 (61 FR 68162), the Secretary of Government procurement. Motor Carrier Information Analysis, Transportation delegated to the Federal Dated: August 7, 1998. (202) 358–7055, Mr. Michael Falk, Highway Administrator the Edward C. Loeb, Motor Carrier Law Division, Office of responsibilities to carry out certain Director, Federal Acquisition Policy Division. the Chief Counsel (HCC–20), (202) 366– functions and exercise the authority [FR Doc. 98–21631 Filed 8–11–98; 8:45 am] 1384, or Mr. David Miller, Office of vested in the Secretary under the BILLING CODE 6820±EP±P Motor Carrier Research and Standards ICCTA, including 49 U.S.C. 14104, (HCS–10), (202) 366–1790, Federal Household goods carrier operations. Highway Administration, Department of Enactment of the ICCTA requires DEPARTMENT OF TRANSPORTATION Transportation, 400 Seventh Street, deletion from the regulations of all SW., Washington, D.C. 20590. references to the former ICC and Federal Highway Administration SUPPLEMENTARY INFORMATION: repealed sections of the Interstate Commerce Act, revision of the 49 CFR Parts 375 and 377 Electronic Access regulations to codify the transfer to the [Docket No. FHWA±97±2979] Internet users may access all FHWA of oversight responsibilities for comments received by the U.S. DOT the household goods moving industry, RIN 2125±AE30 Dockets, Room PL–401, by using the and other editorial corrections. universal resource locator (URL): http:/ The FHWA also must seek and obtain Transportation of Household Goods; OMB approval for the information the Consumer Protection Regulations /dms.dot.gov. It is available 24 hours each day, 365 days each year. Please FHWA proposes motor carriers and AGENCY: Federal Highway follow the instructions on-line for more individual shippers must collect, Administration (FHWA), DOT. information and help. disseminate, and disclose in 49 CFR ACTION: Extension and reopening of You may download an electronic part 375. ‘‘Controlling Paperwork comment period. copy of this document using a personal Burdens on the Public,’’ 5 CFR part computer, modem, and suitable 1320, implements the Paperwork SUMMARY: The FHWA is extending and communications software from the Reduction Act of 1995 (Pub. L. 104–13 reopening this rulemaking’s comment Federal Register Electronic Bulletin (May 22, 1995). Part 1320 requires the period for an additional 60 day period Board Service at (202) 512–1661. FHWA to obtain OMB approval before of time. This is in response to one Internet users may reach the Federal the FHWA requires the public to collect, petition received by the FHWA Register’s home page at URL: http:// disseminate, and disclose the requesting an extension of the comment www.nara.gov/fedreg and at the information proposed in 49 CFR part period closing date. The petitioner Government Printing Office’s databases 375. The NPRM’s 60-day comment based her request upon her belief that at URL:http://www.access.gpo.gov/ period is serving as the 60-day period the FHWA provided too brief an suldocs. required under 5 CFR 1320.8(d), opportunity to enable individual 1320.11, and 1320.12. consumers, as opposed to industry Background On July 3, 1998, the FHWA received lobbyists, to become aware of the On May 15, 1998, (63 FR 27126), the a petition from Barbara R. Kueppers, rulemaking, to digest the NPRM’s FHWA published an NPRM requesting Esquire, to extend the comment period contents and to respond to the comments to a proposed rule. The for an additional 60-day period. She opportunity with comments. This proposed rule would regulate motor stated the original 60-day period NPRM is required, in part, by the carriers transporting household goods allotted too brief an opportunity ‘‘to Paperwork Reduction Act of 1995, by requiring these motor carriers to enable individual consumers, as because most of the information provide certain services to protect opposed to industry lobbyists, to be collection burdens formerly imposed by consumers. aware of the rulemaking, to digest the the Interstate Commerce Commission Many customers of household goods contents of the proposed rules and to have never received Office of carriers, particularly those customers respond with meaningful comments.’’ Management and Budget (OMB) who move at their own expense and are For the reason in the above paragraph, approval. infrequent users of transportation the FHWA finds good cause to extend DATES: Comments to the NPRM should services, are unsophisticated and less this NPRM comment period closing date be received no later than October 13, able to protect themselves than until October 13, 1998, to provide 1998. The FHWA will consider late commercial shippers. In order to ensure individual consumers and others comments to the extent practicable. these consumers are protected, the additional time to digest the NPRM’s ADDRESSES: Signed, written comments Interstate Commerce Commission (ICC) contents and to respond with salient should refer to the docket number had prescribed regulations governing comments. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43129

List of Subjects in 49 CFR Part 375 Service concludes that listing of the (1985) believed unambiguous black Advertising, Arbitration, Consumer black legless lizard is not warranted. legless lizard populations to be protection, Freight, Highways and ADDRESSES: The complete file for this restricted to the coastal area between the roads, Insurance, Motor carriers, Moving action is available for inspection, by Salinas and Carmel rivers. Stebbins of household goods, Reporting and appointment, during normal business (1985) considered the distribution of recordkeeping requirements. hours at the Ventura Fish and Wildlife this taxon to be the Monterey Peninsula, Office, U.S. Fish and Wildlife Service, Monterey Bay, and Morro Bay. Hunt List of Subjects in 49 CFR Part 377 2493 Portola Road, Suite B, Ventura (1983) showed an even more extensive Credit, Freight forwarders, Highways California 93003. distribution. All of these authors agree and roads, Motor carriers. FOR FURTHER INFORMATION CONTACT: Mr. that coastal specimens of Anniella from between the Salinas and Carmel rivers Authority: 23 U.S.C. 315 and 49 CFR 1.48. Carl T. Benz, Assistant Field Supervisor, Ventura Fish and Wildlife Office, U.S. are black legless lizards. As a result, the Issued on: August 5, 1998. August 2, 1995, proposal of A. p. nigra Kenneth R. Wykle, Fish and Wildlife Service, at the above address (805/644–1766). as endangered was applied only to the Federal Highway Administrator. SUPPLEMENTARY INFORMATION: range of this taxon as described by [FR Doc. 98–21610 Filed 8–11–98; 8:45 am] Miller (1943) and Bury (1985). BILLING CODE 4910±22±M Background Based on electrophoretic analyses of On August 2, 1995, the Service Anniella from a small number of published a proposal to list five plant localities in California and Baja DEPARTMENT OF THE INTERIOR species and the black legless lizard from California, Mexico, Bezy et al. (1977) Monterey County, California as concluded that the genetic distance Fish and Wildlife Service endangered or threatened in the Federal between Anniela. p. nigra and A. p. pulchra was consistent with subspecific 50 CFR Part 17 Register (60 FR 39326) . The subject of this withdrawal, the black legless lizard, classification. Rainey (1984) conducted RIN 1018±AD09 was originally described by Fischer in biochemical analyses of Anniella from 1885 as Anniella nigra (in Hunt 1983). several coastal central California Endangered and Threatened Wildlife The description of A. nigra as distinct localities with the goal of resolving the and Plants; Withdrawal of Proposed from A. pulchra, which had been distinctness of the black legless lizard. Rule to List the Black Legless Lizard previously described by Gray in 1852 The results suggested genetic as Endangered and Richardson in 1854 (in Hunt 1983), differences between dark forms of A. p. AGENCY: Fish and Wildlife Service, was based on unique scalation, body pulchra from Morro Bay and A. p. nigra Interior. proportions, and coloration observed in from the Monterey Peninsula. The results of more fine-scaled sampling in ACTION: Proposed rule; withdrawal. a single specimen. Since the original description, the taxonomic status of the the vicinity of Monterey Bay revealed SUMMARY: The U.S. Fish and Wildlife black legless lizard has been open to differences in allele frequencies even Service (Service) withdraws the interpretation (Hunt 1983 and among adjacent sites, suggesting genetic proposed rule, published in the Federal references therein; Murphy and Smith subdivisions even within a limited area, Register on August 2, 1995 (60 FR 1985, 1991; Jennings and Hayes 1994). but too few samples were analyzed to 39326), to list the black legless lizard However, since at least the 1940s, most draw any reliable conclusions. (Anniella pulchra nigra) as an authors have concluded that the black The black legless lizard is a endangered species under the legless lizard is a subspecies of A. burrowing, limbless lizard about the Endangered Species Act of 1973, as pulchra. As currently recognized, the diameter of a pencil and reaches a amended (Act). The black legless lizard California legless lizard, A. pulchra, maximum length of about 23 is now known to occur in a much wider consists of two subspecies; a wide- centimeters (cm) (9 inches (in)). It has variety of habitat than previously ranging form, A. p. pulchra, the silvery a black or dark brown back (hatchlings thought, and the threats to its survival legless lizard, and a more narrowly are light colored) and a yellow have decreased since the proposed rule ranging form, A. p. nigra, the black underside (Fisher 1934, Miller 1943, was published. The Installation-Wide legless lizard. Hunt 1983, Stebbins 1985). The black Multispecies Habitat Management Plan The black legless lizard has been legless lizard is distinguished from the (HMP) for Former Fort Ord, now collected primarily from coastal dunes silvery legless lizard by dark back provides preservation and habitat of the Monterey Peninsula and coloration, fewer back scales count, and management on 546 hectares (ha) (1,366 Monterey Bay between the Salinas and a relatively short tail (Miller 1943, Hunt acres (ac)) of coastal and interior dune Carmel rivers (Miller 1943, Bury 1985). 1983, Bury and Corn 1984). sheets occupied by the black legless However, Anniella with dark backs and Although the historical distribution of lizard. Elsewhere, a large proportion of other morphological traits resembling the black legless lizard is somewhat the remaining habitat of the black the black legless lizard have been uncertain, museum specimens collected legless lizard is already protected from collected north of the Salinas River as since the late 1800s suggest a urbanization and commercial far as the San Francisco Bay area and distribution restricted to coastal and development on public lands, and south of the Carmel River in the Morro interior dunes and other areas of sandy widespread losses of habitat are Bay and Pismo Beach areas, and on the soils in the vicinity of Monterey Bay unlikely to continue in the foreseeable Santa Maria dune sheet at the and the Monterey Peninsula. Over the future. Recent and ongoing restoration Guadalupe (San Luis Obispo County) last 20 years, biological surveys and efforts on dunes colonized by alien and Mussel Rock (Santa Barbara anecdotal accounts of naturalists and vegetation are likely to benefit the black County) dunes. The relationship of area residents confirm that the black legless lizard. Furthermore, extensive these lizards to A. p. nigra remains legless lizard is still extant within this new invasion of existing black legless unresolved (Miller 1943, Bezy et al. range; however, much of the coastal lizard habitat by alien plants is unlikely 1977, Hunt 1983, Bury 1985, Jennings sandy plains and dunes that were to occur. Based on this information the and Hayes 1994). Miller (1943) and Bury habitat for this lizard, particularly on 43130 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules the Monterey Peninsula, have been initial comment period, and in the disagree on the distinctness of the black converted to urban or other uses. Monterey Herald, Half Moon Bay legless lizard as well as the basis for Bury (1985) surveyed most potential Review, and Pacifica Tribune for the distinguishing between the black legless habitat for the black legless lizard, as 1997 comment period. lizard and the more common silvery well as sites as far south as Morro Bay During the public comment periods form. On the other hand, one and north to An˜ o Nuevo State Reserve and public hearing, 20 agencies, groups, commenter submitted an unpublished in San Mateo County where intergrades and individuals commented on the manuscript which included a phylogeny might occur. Black legless lizards were plant taxa included in the proposed of legless lizards based on found at 17 sites, all of which lie on or rule, some of them multiple times. The mitochondrial DNA sequencing. near approximately 45 kilometers (km) majority of comments received Service Response: A brief review of (28 miles (mi)) of coastline between the concerned the proposal to list the black the taxonomic history of the black Salinas and Carmel rivers. Within the legless lizard. Written comments and legless lizard is provided in the range of the black legless lizard, habitat oral statements presented at the public background section of this notice. All destruction due to urbanization, hearing and received during the available evidence indicates that the particularly on the Monterey Peninsula, comment periods were given equal California legless lizard, Anniela has reduced and fragmented the habitat consideration and are addressed in the pulchra, is subdivided into a number of available to this lizard. The remaining following summary. Because the more or less genetically distinct groups. coastal habitat is degraded to varying proposed rule included five plant taxa Unresolved evolutionary relationships degrees by current or previous human in addition to the black legless lizard, continue to interest workers in the fields effects such as trampling, sand mining, only those comments specific to the of evolutionary biology, systematics, vehicular use, and introduction of black legless lizard are addressed in this and natural history, and it is recognized exotic plants, particularly Carpobrotus notice. Comments specific to the five that taxonomic studies that may result edulis and Ammophila arenaria. plant taxa and general comments on the in the revision of A. pulchra are likely. proposed rule are discussed in a Nevertheless, the black legless lizard Summary of Comments on the Proposed separate Federal Register notice being has been regarded as taxonomically Rule published concurrently with this distinct for over 100 years. Despite In the August 2, 1995, proposed rule withdrawal. Comments of a similar ambiguities that exist regarding the (60 FR 39326) and associated nature are grouped into a single issue. distinctness and relationships of legless notifications, all interested parties were These issues and the Service’s responses lizards north of the Salinas River and requested to submit factual reports or are discussed below. south of the Carmel River, the presence information to be considered in making Issue 1: Several commenters warned of a distinct, more or less isolated, a final listing determination. The that the economic development or legless lizard in the vicinity of Monterey proposed rule opened a public comment revitalization of the jurisdictions within Bay has not been seriously debated for period through October 9, 1995. A the range of the black legless lizard several decades. public hearing was requested by one could be threatened by the listing. Issue 3: Citing new information commenter. Due to the Federal Additionally, noting that the black relating to the closure of the former Fort moratorium on final listing actions, legless lizard is regularly encountered Ord, several commenters pointed out imposed on April 10, 1995, the public on agricultural, commercial and that legless lizards have now been found hearing and processing of the final rule residential properties, several to occur over a much wider range and could not be scheduled immediately. commenters were concerned that the in a more complex array of habitats than Once the moratorium was lifted, on listing could curtail, or make illegal, the was described in the proposed rule. April 26, 1996, the Service established everyday activities of property owners, These commenters encouraged the its priority for listing actions and the such as tilling soil for farming, yard Service to delay the listing decision public hearing was scheduled. The work, and landscaping. until the taxonomic identity of these public hearing was held on August 20, Service Response: Section 4(b)(1)(A) lizards and their distribution and 1996, in Monterey, California, and of the Act requires that a listing abundance on the former Fort Ord lands allowed presentation of both oral and determination be based solely on the are established. written comments. An associated 60-day best scientific and commercial data Service Response: The Service public comment period closed August available. The legislative history of this acknowledges that new information on 30, 1996. During the hearing and public provision clearly states the intent of distribution and habitat use has been comment period substantial new Congress to ‘‘ensure’’ that listing made available since the proposal to list information was submitted concerning decisions are ‘‘based solely on biological the black legless lizard as endangered the range, habitats, and taxonomic criteria and to prevent non-biological (60 FR 39326). In 1995 and 1996, legless status of the legless lizards. To allow the criteria from affecting such decisions’ lizards were encountered by U.S. Army public to comment on this new (H.R. Rep. No. 97–835, 97th Cong. 2nd personnel during unexploded ordnance information and to permit submission of Sess. 19 (1982)). As further stated in the cleanup operations at the former Fort any new information that had become legislative history, ‘‘economic Ord (James W. Willison, Director of available on the other taxa in the considerations have no relevance to Environmental and Natural Resources package, the comment period was determinations regarding the status of Management, Presidio of Monterey, in reopened. The second 30-day public species.’’ Because the Service is litt. 1997). Late in 1996, the Fort Ord comment period closed on May 2, 1997. specifically precluded from considering Coordinated Resource Management and Appropriate Federal and State agencies, economic impacts in a final Planning (CRMP) team formed a special local governments, scientific determination on a proposed listing, subcommittee to coordinate surveys for organizations, and other interested possible economic consequences of legless lizards on the former base and parties were contacted and asked to listing the black legless lizard were not nearby areas. Field surveys have been comment. Legal notices of the considered. conducted in the interior of the former availability of the proposed rule were Issue 2: Several commenters argued base on lands managed by the City of published in the Monterey Herald and that there is insufficient basis for a Marina, the University of California, and the Santa Cruz Sentinel during the listing at this time because experts the Bureau of Land Management (BLM) Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43131

(Robert E. Beehler, Area Manager, reported black legless lizards on their Service Response: The black legless Hollister Resource Area, BLM, in litt. property. The commenters questioned lizard, like other small, burrowing 1997). During these surveys, legless the need to list such a common reptiles can occur in dense populations, lizards have been encountered in many organism as endangered. An opposing up to several hundred per hectare, in a new localities and in a variety of view was presented by other wide range of habitats (Turner 1977). habitats including live oak woodland, commenters who argued that the lizard The distribution of legless lizards non-native grassland/oak woodland is imperiled by human impacts and that within their range, however, is dictated ecotone, grassland/shrub, dune scrub, Federal listing could provide greater largely by soil texture (Hunt 1997, in and maritime chaparral. The assurances for the survival of the black press). Thus, the distribution of the implications of these survey results with legless lizard. black legless lizards in the vicinity of respect to the status of the black legless Service Response: A questionnaire Monterey Bay is expected to be lizard are discussed under Factor A in attached to the City of Marina somewhat patchy. The results of surveys the ‘‘Summary of Factors Affecting the newsletter, was sent to 7,000 businesses conducted under the auspices of the Species’’ section. and residences in the spring of 1997. Of CRMP on the former Fort Ord have Issue 4: Several commenters argued 247 responses, 81 (33 percent) of the conformed to the prediction of a patchy that the habitat of the black legless respondents indicated they had seen distribution. Primary threats to the lizard is much more secure than legless lizards on their property. Most of lizard identified in the proposed rule indicated in the proposed rule because the respondents had seen legless lizards involved uncertainties associated with the lizard will now be protected on within the last 3 years, and many the clean-up and transfer of lands 6,800 ha (17,000 ac) as part of the HMP indicated they observe legless lizards formerly managed by Fort Ord and the for former Fort Ord, and because parts year after year. The results of the City invasion of lizard habitat by exotic of its range overlap with the range of the of Marina survey are not surprising. vegetation (60 FR 39332–39334). The federally listed Smith’s blue butterfly Legless lizards are occasionally significance of these threats is discussed (Euphilotes enoptes smithi). encountered on residential and under factors A and E of the ‘‘Summary Service Response: The Service agrees. commercial property throughout their of Factors Affecting the Species’’ Roughly 6,800 ha (17,000 ac) on the range. In the Monterey Bay area, it is not section. former Fort Ord is permanently unusual for residents of Marina, Issue 8: Two commenters questioned protected under the provisions of the Seaside, and portions of Monterey and the current severity of the threats to the HMP (U.S. Army Corps of Engineers Pacific Grove to encounter black legless black legless lizard related to conversion 1997). The HMP was established in lizards on residential and commercial of the dune habitats by invasion of April, 1994, and subsequently revised in properties. Legless lizards can clearly exotic plants such as Carpobrotus edulis November, 1996, and again in April, persist for decades in and around highly and Ammophila arenaria. The 1997. Since 1995, surveys conducted altered man-made settings, although this commenters described dune restoration under the auspices of the CRMP team projects in detail, including exotic plant may not be optimal habitat for them. have demonstrated a wide, but eradication on previously preserved Habitat fragmentation is discussed apparently patchy, distribution of dark- Federal and State lands, newly further in Factor E of the ‘‘Summary of colored legless lizards on former Fort protected lands associated with the Factors Affecting the Species’’ section of Ord lands. Within the HMP boundaries, closure of former Fort Ord, and private this notice. legless lizards have been encountered property, and argued that lizard habitat on lands that have already been Issue 6: One respondent questioned is becoming more, not less common in developed, on lands that are proposed the need for listing the black legless the Monterey Bay area. On the other for development, and on lands that are lizard at this time, noting the California hand, several commenters supported permanently protected and will be Environmental Quality Act (CEQA) and listing because of concerns about managed for sensitive plants and the California Coastal Act recognize the invasion of black legless lizard habitat animals. lizard as a special status species. by exotic plant species. Over much of its range, the black Service Response: The black legless Service Response: Most of the legless lizard is found in habitats lizard is often given special evidence that exotic plants are occupied by the Smith’s blue butterfly. consideration in CEQA compliance associated with low abundances of On public lands, where the habitat of documents. Legislation and State black legless lizards is indirect. Using the Smith’s blue butterfly is largely regulations require mitigation or other an intensive sampling method, Bury protected, management actions such as compensation for impacts to sensitive or (1985) demonstrated that black legless removing exotic vegetation and rare species. However, CEQA provides lizards were less abundant in mats of restoring native plant communities may for ‘‘Statements of Overriding Hottentot fig than they were in and benefit the black legless lizard when it Consideration’’ which allow adverse around native dune vegetation. Soil is present. On private lands occupied by impacts with less than full mitigation. chemistry, thermal properties and the Smith’s blue butterfly, proposed The California Coastal Act regulates invertebrate prey abundance differ developments may be permitted via the development within the coastal zone between dune habitats dominated by habitat conservation plan (HCP) process and has slowed the loss of coastal Carpobrotus edulis and natural dune pursuant to section 10 of the Act. Black habitats such as the dune habitats used habitats (Bury 1985; Lawrence Hunt, legless lizards are likely to benefit from by black legless lizards. University of California, Santa Barbara, the permanent maintenance of natural Issue 7: Several commenters in litt. 1995). Since about 1985, a host plant communities on HCP lands questioned the need for listing at this of programs on Federal, State, and preserved for the Smith’s blue butterfly. time because the lizard is very abundant private lands have been initiated to Issue 5: Several area residents pointed in suitable habitat. On the other hand, eradicate exotic plants and restore out that the black legless lizard is other commenters argued that the native plant communities on the dune common in residential neighborhoods distribution of legless lizards is patchy, ecosystems of the Monterey Bay area. and on commercial property in the and abundance does not assure survival At present, our knowledge of the cities of Seaside and Marina. More than when the human impacts involve habitat requirements of the black legless 80 residents of the City of Marina habitat destruction. lizard, and of the methods and results 43132 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules of the ongoing dune restoration efforts legless lizard as a distinct biological 39332). It has now been found in a suggests that the black legless lizard will entity. wider variety of habitats, including live benefit substantially if these programs Service Response: Anecdotal and oak woodland, non-native grassland/oak continue. A more complete analysis of published reports of interbreeding woodland ecotone, grassland/shrub, impacts of exotic vegetation and dune between black legless lizards (Anniela dune scrub, and maritime chaparral (R. restoration programs on the black p. nigra) and silvery legless lizards (A. Beehler, in litt. 1997). The major land legless lizard is given under Factor E of p. pulchra) are common and are based manager responsible for maintaining the ‘‘Summary of Factors Affecting the on apparent intermediate morphological natural habitats in the interior of the Species’’ section. traits including scalation, body former Fort Ord is the BLM, to which Issue 9: One commenter criticized the proportions, and coloration. The the U.S. Army has already transferred Service’s heavy reliance on the Bury currently available biochemical and several thousand acres. The University (1985) status report, which is over 10 molecular evidence is insufficient to of California Natural Reserve System years old. The respondent stated that determine the extent of gene flow, past will manage about 240 ha (600 ac) for the report is stale and no longer or present, between populations of field research and teaching as well as for accurate. Citing Roosevelt Campobello legless lizards in the Monterey Bay area. protection and enhancement of Intern. Park v. U. S. E. P. A., 684 F.2d No evidence exists, therefore, that biological resources. With the 1041, 1052–1055 (1st Cir. 1982) the hybridization poses a threat to the black implementation of the HMP a large commenter argued that in cases where legless lizard. portion of the undeveloped remainder insufficient information exists, the Summary of Factors Affecting the of the interior Monterey Dune sheets Service is obliged to develop further Species will be protected, making the Monterey scientific data. Likewise, the same dune complex (Cooper, 1967) the largest commenter argued, citing City of The Act and implementing protected dune mass in California. Since Carmel-By-The-Sea v. U.S. Dept. Of regulations found at 50 CFR 424.17(3) 1995, surveys conducted under the Transp., 95 F.3d 892, 900 (9th Cir. provide the basis for determining a auspices of the CRMP team have 1996), that reliance on stale scientific species to be endangered or threatened demonstrated a wide, but apparently data can constitute an abuse of and for withdrawing a proposed rule patchy, distribution of dark-colored discretion. These arguments based on when the proposal has not been found legless lizards on former Fort Ord lands the same court decisions also were to be supported by available evidence. (M. Houlemard, in litt. 1997). made by a second commenter. The five factors described in section The Department of the Army also is Service Response: Although the Bury 4(a)(1) of the Endangered Species Act, currently in the process of transferring (1985) status report on the black legless as they apply to the withdrawal of the over 320 ha (800 ac) of coastal dunes lizard is now 12 years old, it remains proposed listing of the black legless along a roughly 6.4 km (4 mi) reach to accurate and still useful. It provides an lizard (Anniella pulchra nigra), are as the California Department of Parks and extensive analysis of the distribution of follows: Recreation (CDPR). CDPR management black legless lizards, their variation, and A. The Present or Threatened plans on Marina State Beach and on the their habitats. The descriptions of Destruction, Modification, or adjoining coastal dune habitat being collection localities and the habitat Curtailment of its Habitat or Range transferred from the former Fort Ord conditions are of sufficient detail to offer permanent protection to over 340 allow current workers to evaluate short- Primary threats to the black legless ha (850 ac) of black legless lizard habitat term changes in legless lizard habitat. In lizard identified under Factor A in the (U.S. Army Corps of Engineers 1997). a clear demonstration that the Bury proposed rule were associated with the Furthermore, as a result of a recent report still provides valuable historical anticipated closure of Fort Ord, Memorandum of Understanding information, the Service received, including clean-up and the disposition between the City of Sand City, the during the public comment period, a and future uses of the former Army Monterey Peninsula Regional Parks copy of a site-by-site comparison base, which at the time were unknown District, and the California Coastal between the habitat conditions (60 FR 39332). Now that the closure of Commission, 75 to 80 percent of Sand described by Bury in 1985 and the Fort Ord has occurred, the significance City coastal habitat adjacent to the current conditions at those same sites of these threats can be more accurately former Fort Ord will be preserved as (Michael J. Zander, Zander and assessed. Under the Installation-Wide open space (David Pendergrass, Mayor, Associates, in litt. 1995). Without the HMP, roughly 6,800 ha (17,000 ac) of City of Sand City, in litt. 1997). specific site and habitat condition the former Fort Ord will be permanently Other threats to the black legless information contained in the Bury protected and managed for plants and lizard cited under Factor A in the report, such a comparison would not wildlife, including the black legless proposed rule included military have been possible. Furthermore, the lizard (Michael Houlemard, Fort Ord activities, off-road vehicle activities, Act is clear in its requirement that Reuse Authority, in litt. 1997). At the human trampling, and sand mining (60 listing decisions be based ‘‘solely on the time of the proposed rule, the extent of FR 39332). With the closure of Fort Ord, best scientific and commercial data occupied black legless lizard habitat military activities no longer threaten the available [emphasis added] after was uncertain, with estimates ranging species or its habitat. Off-road vehicle conducting a review of the status of the from 190 ha (470 ac) to 1,206 ha (2,980 use has been prohibited on all public species . . .’’ (16 U.S.C. 1533, section ac). Based on surveys conducted since lands along Monterey Bay and coastal 4(b)(1)(A)). The Service, therefore, is not the proposed rule was published (60 FR portions of the Monterey Peninsula for obliged to develop further scientific data 39332), it is now known that at least 546 many years. The effects of human beyond that which is available to it ha (1,366 ac) of habitat for the black trampling are being reduced by active during its status review. legless lizard will be protected on the programs that involve restricting access Issue 10: Two commenters supported former Ford Ord (US Army Corps of to designated trails with symbolic and the listing, registering their concern that Engineers 1997). In addition, at the time cable fencing and construction of sand hybridization between black and silvery of the proposed rule, the black legless ladders and boardwalks. Sand mining legless lizards represents a substantive lizard was thought to be restricted to occurs at only two sites and, therefore, threat to the distinctness of the black sandy coastal plains and dunes (60 FR is not considered to be a significant Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43133 threat in the absence of major threats to however, and the black legless lizard’s lizard’s range, protection of habitat for the species or its habitat. small size, secretive habits, and difficult the butterfly is likely to also benefit the Although land development was not maintenance requirements all suggest lizard. As discussed under Factor A, specifically identified as a major threat that the international trade in reptiles most undeveloped private property in the proposed rule, at least one poses an insignificant threat to the within the range of the black legless comment received during the public taxon. lizard is already the subject of impact comment period suggested that this studies and development planning C. Disease or Predation might be the case. A comparison of the efforts, and it is highly likely that a habitat conditions at sites described by The black legless lizard is not known stable equilibrium between urbanization Bury (1985) with their current status (J. to be subject to catastrophic diseases. In and habitat protection will be achieved Dack, City of Marina, in litt. 1997) surveys, many individuals have broken in the foreseeable future. In addition, shows that only a small amount of black or scarred tails, suggesting predation the trend toward conversion of natural legless lizard habitat, mostly on private (Bury 1985). Miller (1944) believed that dune plant communities by exotic lands, has been developed or proposed predation by feral house cats may vegetation has been reversed (see Factor for development. In fact, during this negatively affect some black legless E) and should soon lead to a significant period both land ownership and land lizard populations. Threats posed by increase in suitable habitat for the black use has favored the protection of natural house cats and other predators legless lizard. Therefore, the inadequacy habitats. The majority of black legless associated with humans can be expected of existing regulatory mechanisms does lizard habitat is now in protected status whenever urban development not constitute a significant threat to the on public lands such as the State encroaches on the habitat of this lizard. black legless lizard. Beaches where most dunes have been The well documented persistence of designated as Natural Preserves. Almost black legless lizards for several decades E. Other Natural or Manmade Factors all of the undeveloped private property in urban and suburban areas within the Affecting Its Continued Existence parcels are already the subject of studies Monterey Bay area and the Monterey Nearly all known coastal black legless and planning efforts which will, in all Peninsula settings suggests, however, lizard localities support populations of likelihood, lead to the resolution of that predation is a minor threat and the exotic plants such as Carpobrotus future land uses within the next 10 risk of even local extirpation due to edulis, Ammophila arenaria, ice plant years. The future land uses on the predators associated with humans is (Mesembryanthemum crystallinum), stretch of private property along the probably low. and veldt grass (Ehrharta calycina). Legless lizards are primarily associated coast between the Salinas River D. The Inadequacy of Existing with moist soil and leaf litter under National Wildlife Refuge and Marina Regulatory Mechanisms State Beach represent, by far, the native vegetation such as bush lupine greatest area of uncertainty about future The black legless lizard is listed as a (Lupinus albifrons), mock heather conversion of black legless lizard habitat protected reptile under Section 650 of (Haplopappus ericoides), and sagewort for human uses. the Title XIV California Sport Fishing (Artemisia sp.) and appear to be less Because of the widespread occurrence Regulations. Except under special abundant in areas dominated by of the endangered Smith’s blue butterfly permit from the California Department Carpobrotus edulis (Miller 1944, along the Monterey coast, many future of Fish and Game, collection of black Stebbins 1954, Bury 1985, City of Sand development proposals along the legless lizards is prohibited by the State City 1992). During habitat restoration at coastline will probably be subject to the of California. The habitat of this species Asilomar State Beach, where C. edulis Act and the habitat protections that is not specifically protected by any State was removed by hand from over 12 ha accompany it. On these lands, proposed or Federal regulation. Land use on black (30 ac), black legless lizards were not developments may be permitted via the legless lizard habitat is controlled by found in pure stands of C. edulis, but habitat conservation plan (HCP) process local zoning, California State Park were found where Carpobrotus edulis pursuant to section 10 of the Act. Black regulations on State Beaches such as grew in mixed stands with native shrubs legless lizards are likely to benefit from Marina and Monterey State Beaches, (Tom Moss, pers. comm. 1993). Pure the permanent maintenance of natural and land management practices on stands of some exotic plants may alter plant communities on HCP lands Federal lands, including the Salinas the substrate or prey base in a way that preserved for the Smith’s blue butterfly. River National Wildlife Refuge, portions is detrimental to black legless lizards. Thus, the Service finds no evidence that of the former Fort Ord and the Naval While the mechanism is unclear, exotic future losses of black legless lizard Post-graduate School. The black legless plants may influence soil temperature or habitat from land conversion constitute lizard is often given special moisture differently than native a significant threat to the species. consideration in land use planning and vegetation. Some types of exotic plants, in National Environmental Policy Act including ice plants, support a smaller B. Overutilization for Commercial, and CEQA compliance documents. The arthropod prey base than native plant Recreational, Scientific, or Educational California Coastal Act regulates communities (Miller 1944, Stebbins Purposes development within the coastal zone 1954, Nagano et al. 1981) and it is Although the black legless lizard is of and has slowed the loss of coastal known that some ice plants can cause interest to many people because it is an habitats such as the dunes and sand increased salt concentrations in soil unusual reptile, overutilization does not habitats used by black legless lizards. (Kloot 1983). Bury (1985) speculated appear to be a factor threatening the On Federal lands, the black legless that ice plants may make habitat species (Bury 1985). The State of lizard has also been afforded some unsuitable for black legless lizards California prohibits taking or possession protection indirectly through special either because they have trouble of black legless lizards without a special management for Federal listed and maintaining their water balance in the permit (see Factor D). Collection of candidate plant species that occur in substrate, or indirectly through species by reptile collectors could pose coastal areas. Where the black legless reductions in arthropod abundance. a serious threat to populations that lizard occurs with the endangered In his status report, Bury (1985) found contain few individuals. Legless lizards Smith’s blue butterfly, which is the case widespread patches of ice plant and are not commonly collected or traded, throughout much of the black legless other exotic vegetation on most of the 43134 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules sites he surveyed. On undeveloped sites much the same condition as it was overall impact of random events to the such as the State beaches, as well as on when Bury described it. However, under black legless lizard is unlikely to be smaller fragments of dunes along the authority of the HMP for the former significant. developed stretches of coastline, the Fort Ord, over 340 ha (850 ac) along the The proposed rule also identified amount of habitat available to black stretch of beach described by Bury will relatively low fecundity in the black legless lizards was limited by the be transferred from the U.S. Army to the legless lizard as a potential threat, presence of exotic plants, primarily C. CDPR (U.S. Army Corps of Engineers because it implied a relatively long edulis. As a result of a variety of 1997). The HMP calls for preservation population recovery time and a publicly and privately funded and exotic plant removal, as well as heightened sensitivity to habitat restoration projects and volunteer efforts restoration and maintenance of native degradation from off-road vehicles, since 1985, however, most extant dune plant communities on over 280 ha trampling, and other disturbances (60 coastal dunes in the Monterey Bay area (700 ac). FR 39334). Because the black legless have had at least some level of exotic Because the current trend is toward lizard is now known to occur in many plant removal and native plant restoration of coast dune ecosystems, it areas protected from such disturbances, revegetation. The sites Bury surveyed is unlikely that, in the foreseeable and in other areas that will likely be which now have dune restoration future, conversion of black legless lizard protected from such disturbances in the programs include all of the State habitat by exotic vegetation will occur at near future, relatively low fecundity, in beaches, most notably Sunset State levels similar to those between the time and of itself, is not likely to pose a Beach, Salinas River State Beach, of the natural history studies of Miller significant threat to the survival of the Marina State Beach, and Asilomar State (1944) and the Bury status review species. Beach. Another restoration effort is (1985). Most likely, the ratio between In the proposed rule (60 FR 39334), underway at the U.S. Navy Post- exotic and native vegetation in the the Service also identified strong storms graduate School (Cowan 1996) where, at Monterey Bay area dunes within the and periodic extremely high tides as the time of the Bury status report, the foreseeable future will reflect funding potential threats to the species. Because natural dune plant community on this levels and commitment to the various the black legless lizard is now known to site was restricted to a 0.5-ha (1.2-ac) restoration programs. Because black occur in protected areas throughout its patch. Over the subsequent 15 years, legless lizards have been encountered range, the Service now believes that the restoration has occurred on 10 ha (25 ac) recently on several restoration and threat posed by such rare, random of the 16 ha (40 ac) of dunes on the site. revegetation sites on Monterey Bay and weather events is unlikely to be Several other sites, most not specifically the Monterey Peninsula, including significant to the survival of the species. mentioned by Bury, have ongoing exotic Marina State Beach, the U.S. Navy Post- There are other random factors with the potential to affect small, isolated plant removal and revegetation graduate School and Asilomar State populations. There is, however, too programs, including the Monterey Beach, it appears that they are able to little known about population size and Peninsula Regional Parks District lands live in restored dune habitats. Although there may be short-term how it fluctuates, population structure, near the City of Marina and the old negative effects on black legless lizards and the dispersal capabilities of the landfill on the Sand City coastline, the from some restoration methods (e.g., the black legless lizard to support more than old Phillips Petroleum site near the City use of glyphosphate instead of hand speculation about the potential threat of Monterey, which has recently been harvest for Carpobrotus edulis removal), posed by random events on this species. purchased by the CDPR, and the City of the Service is aware of no evidence that The Service is not aware of any Monterey’s program at Del Monte any such effects pose a significant threat evidence suggesting that random events Beach. Some dune restoration projects to the species. pose a significant degree of threat to the including exotic plant removal and Fragmentation of existing black black legless lizard. revegetation are also occurring on legless lizard habitat due to the private property in and around Seaside construction of roads, golf courses, and Finding and Withdrawal and Sand City, and on the Monterey other urban development was identified The Service carefully assessed the Peninsula. Two examples of projects on as a potential threat in the proposed rule best scientific and commercial the Monterey Peninsula are the efforts to (60 FR 39334). However, based on information available regarding the past, protect and manage about 24 ha (60 ac) additional review and new information present, and future threats faced by the of created and restored dunes and about the Service no longer believes that black legless lizard. The withdrawal is 6.8 ha (17 ac) of natural dunes near the habitat fragmentation poses a significant based primarily on the finding that the golf course at Spanish Bay and the threat to the species in the foreseeable black legless lizard is now known to restoration on about 2 ha (5 ac) of dunes future. The common occurrence of occur in a wider variety of habitats than at Fan Shell Beach near Spyglass Hill, legless lizards in residential previously thought and that a large Cypress Point. neighborhoods, on agricultural and proportion of the remaining habitat of The largest contiguous coastal tract of commercial properties, in and around the lizard is already protected from black legless lizard habitat surveyed by the roughs adjacent to golf course urbanization and commercial Bury was on the former Fort Ord. Bury fairways, and even under paved development on public lands (U.S. identified about 190 ha (470 ac) along a roadways suggests that this is not a Army Corps of Engineers 1997; D. roughly 6.4 km (4 mi) stretch of coastal significant threat. Although Pendergrass, in litt. 1997; M. dunes. At the time, Fort Ord was an fragmentation may increase the Houlemard, in litt. 1997), and on the active U.S. Army base and the dunes vulnerability of smaller populations to likelihood that widespread losses of and native vegetation were highly local extirpation from random events, habitat due to the invasion of exotic disturbed by past and ongoing military the large blocks of relatively vegetation are unlikely to continue in activities. Bury reported that the dunes unfragmented habitat that are already the foreseeable future. Moreover, the were covered by Carpobrotus edulis and protected, or will likely be protected in current trend is toward restoration of supported little native vegetation. the foreseeable future, are sufficient to coastal ecosystems, a trend that should Although Fort Ord has been buffer the effects of random events on increase the available habitat for the decommissioned, this habitat remains in larger populations. Therefore, the black legless lizard. In addition, because Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43135 of the existing protected habitat areas and other areas likely to receive some protection in the foreseeable future, potential threats from habitat fragmentation, relatively low fecundity, and extreme weather events cited in the proposed rule are now considered unlikely to pose significant threats to the survival of the species. References Cited A complete list of all references cited herein is available upon request from the Ventura Fish and Wildlife Office (see ADDRESSES section). Author. The primary author of this document is Steve Morey, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 3310 El Camino, Sacramento, California 95821–6340 (916/979–2710). Authority The authority for this action is section 4(b)(6)(B)(ii) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). Dated: July 29, 1998. Jamie Rappaport Clark, Director, Fish and Wildlife Service. [FR Doc. 98–21565 Filed 8–11–98; 8:45 am] BILLING CODE 4310±55±P 43136

Notices Federal Register Vol. 63, No. 155

Wednesday, August 12, 1998

This section of the FEDERAL REGISTER 5. Consideration of resolution to retire Information Services, Architectural and contains documents other than rules or class A stock in FY 1998. Transportation Barriers Compliance proposed rules that are applicable to the 6. Consideration of resolution to set Board, 1331 F Street, NW., suite 1000, public. Notices of hearings and investigations, annual class C stock dividend rate. Washington, DC, 20004–1111. committee meetings, agency decisions and 7. Action on the Bank’s annual report Telephone number (202) 272–5434 rulings, delegations of authority, filing of for FY 1997. extension 19 (Voice); (202) 272–5449 petitions and applications and agency 8. Adjournment. statements of organization and functions are (TTY). E-mail [email protected]. examples of documents appearing in this CONTACT PERSON FOR MORE INFORMATION: This document is available in alternate section. Orren E. Cameron III, Acting Assistant formats (cassette tape, Braille, large Governor, Rural Telephone Bank, (202) print, or computer disk) upon request. 720–9554. This document is also available on the DEPARTMENT OF AGRICULTURE Dated: August 7, 1998. Board’s Internet Site (http:// Wally Beyer, www.access-board.gov/rules/ Rural Telephone Bank Governor, Rural Telephone Bank. pvaac.htm). SUPPLEMENTARY INFORMATION: On March Sunshine Act Meeting [FR Doc. 98–21760 Filed 8–10–98; 2:38 pm] 30, 1998, the Architectural and BILLING CODE 3410±15±P AGENCY: Rural Telephone Bank, USDA. Transportation Barriers Compliance ACTION: Staff briefing for the Board of Board (Access Board) published a notice of intent to establish an advisory Directors. ARCHITECTURAL AND committee to provide recommendations TRANSPORTATION BARRIERS TIME AND DATE: 2:00 p.m., Thursday, for developing a proposed rule COMPLIANCE BOARD August 20, 1998. addressing accessibility guidelines for PLACE: Room 0204, South Building, Passenger Vessel Access Advisory newly constructed and altered Department of Agriculture, 1400 Committee; Meeting passenger vessels covered by the Independence Avenue, SW., Americans with Disabilities Act. 63 FR Washington, DC. AGENCY: Architectural and 15175 (March 30, 1998). The notice STATUS: Open. Transportation Barriers Compliance identified the interests that are likely to Board. MATTERS TO BE DISCUSSED: General be significantly affected by the discussion involving: ACTION: Notice of appointment of accessibility guidelines: owners and 1. Current telecommunications advisory committee members and date operators of various passenger vessels; industry issues; of first meeting. designers or manufacturers of passenger 2. Retirement of class A stock in FY vessels; individuals with disabilities; SUMMARY: The Architectural and and others affected by accessibility 1998; Transportation Barriers Compliance 3. Annual dividend rate for class C guidelines for passenger vessels. Board (Access Board) has decided to stock; Over 90 nominations were submitted. establish an advisory committee to 4. Liquidating account and Federal Approximately 30 nominations were assist it in developing a proposed rule Credit Reform; received from travel consultants. About 5. Status of PBO planning; on accessibility guidelines for newly 17 other nominations were received 6. Allowance for loan losses reserve; constructed and altered passenger from individual members of the public 7. Annual report for FY 1997; and vessels covered by the Americans with who have disabilities (or have family 8. Administrative issues. Disabilities Act. The Passenger Vessel members who have disabilities), most of Access Advisory Committee ACTION: Board of Directors Meeting. whom indicated that they have (Committee) includes organizations experience with passenger vessels. Eight TIME AND DATE: 9:00 a.m., Friday, August which represent the interests affected by nominations were received from 21, 1998. the accessibility guidelines for organizations representing persons with PLACE: The Williamsburg Room, Room passenger vessels. This notice also disabilities. Over 15 nominations were 104–A, Jamie L. Whitten Building, announces the times of the first received from access consultants and Department of Agriculture, 1400 Committee meeting, which will be open attorneys with experience in Independence Avenue, SW., to the public. A subsequent notice will accessibility issues. The remaining Washington, DC. announce the specific location within nominations primarily consisted of the Washington, DC area, where the STATUS: Open. organizations representing the passenger meeting will be held. MATTERS TO BE CONSIDERED: The vessel industry which includes some DATES: following matters have been placed on The first meeting of the State and local government entities. the agenda for the Board of Directors Committee is scheduled for September For the reasons stated in the notice of meeting: 24 and 25, 1998, beginning at 9:00 a.m. intent, the Access Board has determined 1. Call to order. and ending at 5:00 p.m. each day. that establishing the Passenger Vessel 2. Action on the May 15, 1998, ADDRESSES: A subsequent notice will Access Advisory Committee Minutes. announce the specific location within (Committee) is necessary and in the 3. Report on loans approved in the the Washington, DC area, where the public interest. The Access Board has third quarter of FY 1998. meeting will be held. appointed 23 members to the Committee 4. Summary of financial activity for FOR FURTHER INFORMATION CONTACT: Paul from the following organizations: the third quarter of FY 1998. Beatty, Office of Technical and American Classic Voyages Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43137

American Society of Travel Agents, future meetings will be made at the first equipment, and components section) Committee on Travel for Persons with meeting. Notices of future meetings will and Category 6 (sensors and lasters). Disabilities be published in the Federal Register. To respond to this Notice of BB Riverboats Thurman M. Davis, Sr., Recruitment, please send a fact sheet on Boston Commission for Persons with Chairman, Architectural and Transportation your company as well as a resume/ Disabilities Barriers Compliance Board. biography to the following address: Ms. Chesapeake Region Accessible Boating [FR Doc. 98–21637 Filed 8–11–98; 8:45 am] Lee Ann Carpenter, OAS/EA/BXA MS: Cruise Consultants International BILLING CODE 8150±01±P 3886C, U.S. Department of Commerce, International Council of Cruise Lines 15th St. & Pennsylvania Ave., N.W., Maine Department of Transportation Washington, D.C. 20230. National Association of Charterboat Materials may also be faxed to Ms. Operators DEPARTMENT OF COMMERCE Carpenter at (202) 501–8024. National Tour Association DEADLINE: This Notice of Recruitment Paralyzed Veterans of America Bureau of Export Administration will be open for 20 days from date of Passenger Vessel Association publication in the Federal Register. Technical Advisory Committees; Port of San Francisco FOR FURTHER INFORMATION CONTACT: Ms. Princess Cruises Notice of Recruitment of Private-Sector Members Lee Ann Carpenter on (202) 482–2583. Rhode Island Tourism Division Dated: August 5, 1998. Self Help for Hard of Hearing People SUMMARY: Technical Advisory R. Roger Majak, Society for the Advancement of Travel Committees (TACs) advise the for the Handicapped Assistant Secretary for Export Department of Commerce on the Administration. Society of Naval Architects and Marine technical parameters for export controls [FR Doc. 98–21555 Filed 8–11–98; 8:45 am] Engineers applicable to dual-use commodities and Southeast Alaska Independent Living technology and on the administration of BILLING CODE 3510±33±M Southwest Disability and Business those controls. The TACs are composed Technical Assistance Center of representatives from industry and DEPARTMENT OF COMMERCE Transportation Institute Government representing diverse points University of Alaska Fairbanks of view on the concerns of the exporting International Trade Administration Washington State Department of community. Industry representatives are Transportation selected from firms producing a broad [A±122±804; C±122±805] The Access Board regrets being range of goods, technologies, and New Steel Rail, Except Light Rail, From unable to accommodate all requests for software presently controlled for Canada; Notice of Termination of membership on the Committee. In order national security, foreign policy, Changed Circumstances to keep the Committee to a size that can nonproliferation, and short supply Administrative Reviews and be effective, it was necessary to limit reasons or that are proposed for such Clarification of Scope Language membership. It is also desirable to have controls, balanced to the extent possible balance among members of the among large and small firms. AGENCY: Import Administration, Committee representing different TAC members are appointed by the International Trade Administration, clusters of interest, such as disability Secretary of Commerce and serve terms Department of Commerce. organizations and the passenger vessel of not more than four consecutive years. ACTION: Notice of Termination of industry. The Committee membership The membership reflects the Changed Circumstances Administrative identified above provides representation Department’s commitment to attaining Reviews and Clarification of Scope for each interest affected by issues to be balance and diversity. TAC members Language. discussed. must obtain secret-level clearances prior Committee meetings will be open to to appointment. These clearances are SUMMARY: On September 15, 1989, the the public and interested persons can necessary so that members can be Department of Commerce (the attend the meetings and communicate permitted access to relevant classified Department) published an antidumping their views. Members of the public will information needed in formulating duty order on new steel rail, except light have an opportunity to address the recommendations to the Department of rail, from Canada. The Department Committee on issues of interest to them Commerce. Each TAC meets published a countervailing duty order and the Committee. Members of groups approximately 4 times per year. on new steel rail, except light rail, from or individuals who are not members of Members of the TACs will not be Canada on September 22, 1989. On June the Committee may also have the compensated for their services. 11, 1996, the Department opportunity to participate with Three TACs are currently seeking to simultaneously initiated antidumping subcommittees of the Committee. The fill membership vacancies. Those TACs and countervailing duty changed Access Board believes that participation and the areas in which they advise the circumstances administrative reviews of of this kind can be very valuable for the Department of Commerce are the these orders and issued the preliminary advisory committee process. following: the Materials TAC—Control results of these reviews with intent to Additionally, all interested persons will List Category 1 (materials, chemicals, revoke the orders in part. The have the opportunity to comment when microorganisms, and toxins); the Department is now terminating these the proposed accessibility guidelines for Information Systems TAC—Control List reviews. passenger vessels are issued in the Category 3 (electronics—test, EFFECTIVE DATE: August 12, 1998. Federal Register by the Access Board. inspection, and production equipment FOR FURTHER INFORMATION CONTACT: Zev The meeting will be held at a site section), Category 4 (computers), and Primor or Tom Futtner, Office of accessible to individuals with Category 5 (telecommunications and Antidumping and Countervailing Duty disabilities. Sign language interpreters information security); and the Sensors Enforcement, Office 4, Import and real-time captioning will be and Instrumentation TAC—Control List Administration, International Trade provided. Decisions with respect to Category 3 (electronics—systems, Administration, U.S. Department of 43138 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Commerce, 14th Street and Constitution circumstances sufficient to warrant the introduced metric quantities of the Avenue, NW, Washington, DC 20230; initiation of the changed circumstances covered rail characterizing the subject telephone (202) 482–4114 and (202) reviews pursuant to section 751(b) of merchandise as ‘‘at least 30 kilograms 482–3814, respectively. the Act. On June 11, 1996, the per meter or 60 pounds per yard’’ SUPPLEMENTARY INFORMATION: Department simultaneously initiated the (emphasis added). antidumping and countervailing duty In light of the above, we sent letters Applicable Statute and Regulations changed circumstances administrative to interested parties on March 6, 1997, Unless otherwise indicated, all reviews and issued the preliminary inviting comments on this language citations to the statute are references to results of these reviews with intent to change. In addition, we notified parties the provisions effective January 1, 1995, revoke the orders in part. In these that the Department had decided to the effective date of the amendments results, we invited interested parties to extend the deadline for the final results made to the Tariff Act of 1930 (the Act) comment on the proposed partial of the changed circumstances reviews to by the Uruguay Round Agreements Act. revocations of the antidumping and consider any comments made by the In addition, unless otherwise indicated, countervailing duty orders with respect parties on this potential issue. all citations to the Department’s to nominal 60 ASCE/ASTM A1–92 new On March 20, 1997, Gerdau submitted regulations are as codified at 19 CFR steel rail from Canada. comments which repeated its Part 353 (1996). On June 18, 1996, Steel of West justification for partial revocations of Virginia, Inc., (SWV), a domestic the orders with respect to 60 ASCE/ Background producer of steel rail, objected to the ASTM A1–92 new steel rail. On March On August 3, 1989, the Department Department’s intent to revoke the 27, 1997, Bethlehem submitted rebuttal published the final determinations in antidumping and countervailing duty comments arguing that the Department the antidumping and countervailing orders with respect to the nominal 60 could not partially revoke the orders duty investigations (54 FR 31984) of ASCE/ASTM steel rail size, noting that with respect to 60 pounds per yard steel new steel rail, except light rail, from it had not been canvassed by rail because, based upon the evidence Canada. Subject merchandise was respondent. Gerdau submitted a rebuttal on the record, these rails were never described as rail weighing 60 pounds brief on July 2, 1996, urging the intended to be covered by the orders. In per yard or more. The Department Department to reject SWV’s objection. addition, Bethlehem urged the published the antidumping duty order Gerdau argued that SWV did not Department to issue a scope on new steel rail on September 15, 1989, produce 60 ASCE/ASTM A1–92 steel determination that excluded nominal 60 (54 FR 38263). Following the rail, and if it did, was an insignificant pounds per yard steel rail from the publication of the antidumping duty producer. On August 14, 1996, we sent scope of the orders. SWV did not order, the Department published the a questionnaire to SWV asking the comment. countervailing duty order and an company to clarify the products it Based upon a review of documents on amendment to the final affirmative produced. On August 18, 1996, SWV the record of this proceeding and the countervailing duty determination on responded with information indicating industry analysis contained in the ITC’s new steel rail, except light rail, from that it had the production capability and reports, the Department preliminarily Canada on September 22, 1989, (54 FR was producing nominal 60 ASCE/ASTM concluded that the scope language of 39032). A1–92 steel rail. these orders should be clarified to On February 1, 1996, Gerdau MRM Subsequent to the publication of the define the excluded light steel rail as Steel, Inc. (Gerdau), a Canadian exporter preliminary changed circumstances rail weighing 60 pounds per yard. (30 of new steel rail, requested that the results, the Department determined that kilograms per meter) or less. We issued Department conduct changed the scope language in the antidumping a preliminary clarification of scope circumstances administrative reviews to and countervailing duty orders required language, giving interested parties an determine whether to partially revoke clarification with regard to new steel opportunity to submit both comments the antidumping and countervailing rail weighing 60 pounds per yard. and rebuttal comments. See, duty orders with regard to nominal 60 Specifically, the product description in Memorandum from Richard W. ASCE/ASTM A1–92 new steel rail. The the original antidumping and Moreland, Acting Deputy Assistant application of these orders to imports of countervailing duty petitions, the Secretary, Import Administration, new steel rail other than 60 ASCE/ Federal Register notices initiating these Group II, to Robert S. LaRussa, Assistant ASTM A1–92 is not affected by these two investigations, the preliminary Secretary for Import Administration; requests. determinations of the Commerce Preliminary Clarification of Scope On March 29, 1996, petitioner, Department and the International Trade Language; November 7, 1997. We Bethlehem Steel Corp. (Bethlehem), Commission (ITC), and the received one comment from Gerdau and advised the Department that it has no questionnaires used by both the addressed it in the final clarification of interest in maintaining the antidumping Commerce Department and the ITC all scope language on May 7, 1998. Also, in and countervailing duty orders on 60 refer to new steel rail as product the same clarification, we issued revised ASCE/ASTM A1–92 new steel rail. In weighing more than 60 pounds per yard scope language applicable to both the addition, Gerdau informed the (emphasis added). In addition, the antidumping and countervailing duty Department that it had canvassed petition and the ITC reports identify the (AD/CVD) orders. See, Memorandum interested parties known to it to be only remaining producers of subject rail from Maria Harris Tildon, Acting actively involved in the production of as Bethlehem and CF&I Steel, Inc. (CF&I Deputy Assistant Secretary, Import 60 ASCE/ASTM A1–92 steel rail in the Steel), the petitioners in this case. Administration, Group II, to Robert S. United States, and had not found any Furthermore, the petitioners referred to LaRussa, Assistant Secretary for Import opposition to the revocation of the West Virginia Steel Corporation and the Administration; Final Clarification of orders with regard to this steel rail size. ITC report referred to SWV as producers Scope Language. The revised scope The industry survey and affirmative of ‘‘light rail,’’ or rail that weighs 60 language is contained in the ‘‘Scope of statement of no interest by petitioner in pounds or less per yard. However, in the Review’’ section of this notice below. the antidumping and countervailing final Commerce Department While the scope language was duty cases constituted changed determinations, the Department clarified regarding 60 pounds per yard Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43139 rail, it did not address rail sold antidumping and countervailing duty FOR FURTHER INFORMATION CONTACT: Ron according to nominal terms. changed circumstances reviews. Trentham or Wendy Frankel, Office of Consequently, following clarification of The Department will instruct the U.S. AD/CVD Enforcement, Office 4, Import the scope language and in accordance Customs Service (Customs) to continue Administration, International Trade with 353.29(a) and (i)(1)(1996) of the to suspend entries of subject Administration, U.S. Department of Department’s regulations, we conducted merchandise at the appropriate cash Commerce, 14th and Constitution a scope inquiry to determine whether deposit rate for all entries of new steel Avenue, NW, Washington, DC 20230; nominal 60 pounds per yard new steel rail from Canada, except light rail. telephone: (202) 482–4793 and (202) rail was within the scope of these orders This notice also serves as a reminder 482–5849, respectively. (emphasis added). Upon issuing a to parties subject to administrative Background preliminary scope determination and protection orders (APOs) of their not receiving comments from interested responsibility concerning the On June 30, 1998, NOK Corporation parties, on June 19, 1998, the disposition of proprietary information (NOK), requested that the Department Department issued a final scope disclosed under APO in accordance conduct an administrative review of the determination finding nominal 60 with 19 CFR 353.34(d) and 355.34(d). subject merchandise it exported from pounds per yard steel rail outside of the Timely written notification of the Japan for the period June 1, 1997, scope of these orders. See, New Steel return/destruction of APO materials or through May 31, 1998. Rail, Except Light Rail from Canada; conversion to judicial protective order is On July 28, 1998, the Department Final Scope Determination on Steel Rail hereby requested. Failure to comply published in the Federal Register (63 Model 60 ASCE/ASTM A1–92. with the regulations and terms of an FR 40258) a notice of initiation of administrative review with respect to Scope of Review APO is a sanctionable violation. This notice of termination of changed NOK for the period June 1, 1997, The product covered by the circumstances reviews is in accordance through May 31, 1998. On July 28, 1998, antidumping and countervailing duty with sections 751(b) and (d) and 782(h) NOK requested that it be allowed to orders is new steel rail, whether of of the Act and sections 353.22(f), withdraw its request for a review and carbon, high carbon, alloy or other 353.25(d), 355.22(h), and 355.25(d) of that the review be terminated. quality steel, and includes, but is not the Department’s regulations. Pursuant to 19 CFR limited to, standard rails, all main line 351.213(d)(1)(1998), the Department Dated: August 3, 1998. sections (of more than 30 kg. per meter may allow a party that requests an or 60 pounds per yard), heat-treated or Robert S. LaRussa, administrative review to withdraw such head-hardened (premium) rails, transit Assistant Secretary, Import Administration. request within 90 days of the date of rails, contact rail (or ‘‘third rail’’) and [FR Doc. 98–21635 Filed 8–11–98; 8:45 am] publication of the notice of initiation of crane rails. Rails are used by the BILLING CODE 3510±DR±P the requested review. Because NOK’s railroad industry, by rapid transit lines, request for termination was submitted by subways, in mines and in industrial within the 90-day time limit, and there applications. Specifically excluded from DEPARTMENT OF COMMERCE were no requests for review from other the antidumping and countervailing International Trade Administration interested parties, we are rescinding this duty orders are light rail (rails which are review. We will issue appropriate 30 kg. per meter or 60 pounds per yard [A±588±807] appraisement instructions directly to or less). Also excluded are relay rails the U.S. Customs Service. which are used rails taken up from Industrial Belts and Components and This notice is in accordance with primary railroad track and relaid in a Parts Thereof, Whether Cured or section 777(i) of the Tariff Act of 1930, railroad yard or on a secondary track. Uncured, from Japan: Recission of as amended and 19 CFR The product covered by these Antidumping Duty Administrative 351.213(d)(4)(1998). antidumping and countervailing duty Review orders is currently provided for under Dated: August 6, 1998. the following Harmonized Tariff AGENCY: Import Administration, Maria Harris Tildon, Schedule (HTS) subheadings: International Trade Administration, Acting Deputy Assistant Secretary, Import 7302.10.1020, 7302.10.40, 7302.10.5000 Department of Commerce. Administration. and 8548.00.0000. Prior to January 1, ACTION: Notice of Recission of [FR Doc. 98–21636 Filed 8–11–98; 8:45 am] 1989, such merchandise was classifiable Antidumping Duty Administrative BILLING CODE 3510±DS±P under items 610.2010, 610.2025, Review. 610.2100 and 688.4280 of the Tariff Schedules of the United States SUMMARY: On July 28, 1998, the DEPARTMENT OF COMMERCE Annotated (TSUSA). The HTS and Department of Commerce initiated an TSUSA numbers are provided for administrative review of the International Trade Administration convenience and Customs purposes. antidumping duty order on industrial [A±549±502] The written description of the scope of belts and components and parts thereof, these orders remains dispositive. whether cured or uncured, from Japan Notice of Extension of Time Limit for for NOK Corporation, a manufacturer of Antidumping Duty Administrative Termination of Changed Circumstances industrial belts. This administrative Review of Certain Welded Carbon Steel Reviews review was requested by NOK Pipes and Tubes from Thailand Because nominal 60 pounds per yard Corporation and is for the period June steel rail is not within the scope of these 1, 1997, through May 31, 1998. The AGENCY: Import Administration, orders, there are no grounds upon Department is rescinding this review International Trade Administration, which to conduct changed after timely receiving from NOK Department of Commerce. circumstances reviews with respect to Corporation, a withdrawal of its request EFFECTIVE DATE: August 12, 1998. this size rail. Accordingly, the for review. SUMMARY: The Department of Commerce Department is now terminating these EFFECTIVE DATE: August 12, 1998. (the Department) is extending the time 43140 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices limit for the preliminary and final Republic of Korea), at (202) 482–1767, security testing and evaluation from the results of the 1996–97 antidumping Import Administration, International government to the private sector. duty administrative review for the Trade Administration, U.S. Department DATES: The workshop will take place on antidumping order on certain welded of Commerce, 14th Street and September 9, 1998 from 9:00 A.M. until carbon steel pipes and tubes from Constitution Avenue, NW, Washington, 5:00 P.M. Interested parties should Thailand, pursuant to the Tariff Act of DC 20230. contact NIST at the address or telephone 1930, as amended by the Uruguay Postponement numbers listed below to confirm their Round Agreements Act (hereinafter, interest in attending the workshop. ‘‘the Act’’). On June 30, 1998, the Department of ADDRESSES: The workshop will take FOR FURTHER INFORMATION CONTACT: John Commerce (the Department) initiated countervailing duty investigations of place at the Sheraton International Hotel Totaro or Dorothy Woster, AD/CVD (BWI Airport), 7032 Elm Road, Enforcement Office 7, Import stainless steel sheet and strip in coils from France, Italy, and the Republic of Baltimore, MD 21240, phone: (410) 859– Administration, International Trade 3300, fax: (410) 859–0565. Administration, U.S. Department of Korea. On July 22, 1998, in accordance Commerce, 14th Street and Constitution with 19 CFR 351.205(e) of the FOR FURTHER TECHNICAL INFORMATION Avenue, NW, Washington, DC 20230, Department’s regulations, petitioners CONTACT: Dr. Ron S. Ross, Information telephone (202) 482–1374 or 482–3362, made a timely request that the Technology Laboratory, National respectively. Department postpone its preliminary Institute of Standards and Technology, 820 West Diamond Avenue (Room 426), SUPPLEMENTARY INFORMATION: Under determinations. As we find no Gaithersburg, MD 20899, email: section 751(a)(3)(A) of the Act, the compelling reasons to deny this request, [email protected], phone: (301) 975–5390, Department may extend the deadline for we are postponing the preliminary fax: (301) 948–0279. Alternate point of completion of an administrative review determinations in these investigations to contact is: Ms. Robin Medlock, if it determines that it is not practicable no later than November 9, 1998, Information Technology Laboratory, to complete the review within the pursuant to section 703(c)(1)(A) of the National Institute of Standards and statutory time limit of 365 days. In the Tariff Act of 1930, as amended. Technology, email: [email protected], instant case, the Department has This notice is published pursuant to phone: (301) 975–5017, fax: (301) 948– determined that it is not practicable to section 703(c)(2) of the Act. 0279. Detailed workshop information (to complete the review within the Dated: August 6, 1998. include copies of draft documents statutory time limit. See Memorandum Robert S. LaRussa, related to the Common Criteria Scheme) from Roland L. MacDonald to Robert S. Assistant Secretary for Import is available on the NIAP web site at LaRussa (August 5, 1998). Administration. Because it is not practicable to http://niap.nist.gov. Laboratory [FR Doc. 98–21634 Filed 8–11–98; 8:45 am] accreditation information can be complete this review within the time BILLING CODE 3510±DS±P limits mandated by the Act (245 days accessed at the following web sites: from the last day of the anniversary International Laboratory Accreditation Co-operation (ILAC), http:// month for preliminary results, 120 DEPARTMENT OF COMMERCE additional days for final results), in www.ilac.org, Asia Pacific Laboratory accordance with Section 751(a)(3)(A) of National Institute of Standards and Accreditation Cooperation (APLAC), the Act, the Department is extending the Technology http://www.ianz.govt.nz/aplac/, time limit for the final results until National Voluntary Laboratory October 5, 1998 Announcement of a Workshop to Accreditation Program (NVLAP) http:// Discuss the Development and ts.nist.gov/nvlap. Dated: August 5, 1998. Implementation of a Common Criteria WORKSHOP REGISTRATION: To register for Roland L. MacDonald, Evaluation and Validation Scheme for the workshop, visit the NIAP web site Acting Deputy Assistant Secretary, AD/CVD Information Technology (IT) Security at http://niap.nist.gov and follow the Enforcement Group III. link for Events. Registration must be [FR Doc. 98–21633 Filed 8–11–98; 8:45 am] AGENCY: National Institute of Standards and Technology. received by August 26, 1998. For BILLING CODE 3510±PS±M confirmation or additional information, ACTION: Notice of Public Workshop. contact Lazer Fuerst at Mitretek DEPARTMENT OF COMMERCE SUMMARY: The National Institute of Systems, phone: (703) 610–1689, fax: Standards and Technology (NIST) and (703) 610–1699, email: scheme- International Trade Administration the National Security Agency (NSA), [email protected]. SUPPLEMENTARY INFORMATION: [C±427±815, C±475±825, and C±580±835] partners in the National Information Recent Assurance Partnership (NIAP), invite advances in information technologies Notice of Postponement of Preliminary interested parties to attend a public and the proliferation of computing Determination for Countervailing Duty workshop to discuss the development of systems and networks world-wide have Investigations: Stainless Steel Sheet a Common Criteria Evaluation and raised the level of concern about and Strip in Coils From France, Italy, Validation Scheme for IT Security. The security in both the public and private and the Republic of Korea purpose of the Common Criteria Scheme sectors. Security concerns are motivated is to meet the needs of industry and by a growing use of IT products AGENCY: International Trade government and for cost-effective throughout industry and government in Administration, Import Administration, security evaluation of IT products, (e.g., a variety of critical areas—from Department of Commerce. operating systems, database electronic commerce to national EFFECTIVE DATE: August 12, 1998. management systems, firewalls). The defense. Consumers have access to a FOR FURTHER INFORMATION CONTACT: proposed scheme represents a growing number of security-enhanced Marian Wells (France), at (202) 482– significant change to previous IT IT products with different capabilities 6309; Cynthia Thirumalai (Italy), at product evaluation programs conducted and limitations and must make (202) 482–4087; and Eva Temkin (the by NSA and completes the transition of important decisions about which Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43141 products provide an appropriate degree Dated: August 6, 1998. with the Magnuson-Stevens Fishery of protection for their information. Robert E. Hebner, Conservation and Management Act, In order to help consumers choose Acting Deputy Director. those issues may not be the subject of commercial off-the-shelf IT products, [FR Doc. 98–21630 Filed 8–11–98; 8:45 am] formal action during this meeting. Panel NIST and NSA are developing a BILLING CODE 3510±CN±P action will be restricted to those issues program to evaluate conformance of IT specifically identified in the agenda products to international standards. listed in this notice. This program has the following DEPARTMENT OF COMMERCE A copy of the agenda can be obtained objectives: by contacting the Gulf Council (see National Oceanic and Atmospheric ADDRESSES). • To develop, operate, and maintain a Administration Common Criteria Evaluation and Special Accommodations Validation Scheme; [I.D. 080498F] This meeting is physically accessible • To provide for security evaluations to people with disabilities. Requests for in private sector laboratories; Gulf of Mexico Fishery Management Council; Public Meetings sign language interpretation or other • To ensure that evaluations of IT auxiliary aids should be directed to products are performed to consistent AGENCY: National Marine Fisheries Anne Alford at the Council (see standards and to increase confidence in Service (NMFS), National Oceanic and ADDRESSES) by August 17, 1998. the security of those products; Atmospheric Administration (NOAA), Dated: August 5, 1998. • To improve the availability of Commerce. Bruce C. Morehead, evaluated IT products; ACTION: Notice of public meeting. Acting Director, Office of Sustainable • To create a climate for IT security Fisheries, National Marine Fisheries Service. SUMMARY: The Gulf of Mexico Fishery products of ‘‘Make them here, test them Management Council will convene a [FR Doc. 98–21534 Filed 8–7–98; 8:45 am] here, sell them world-wide’’. public meeting of its Ad Hoc Finfish BILLING CODE 3510±22±F The proposed scheme will promote Stock Assessment Panel (Panel). evaluations of IT products conducted in DATES: The meeting of the Panel will be DEPARTMENT OF COMMERCE the private sector by accredited testing held beginning at 1:00 p.m. on Monday, laboratories. Products will be evaluated August 24, 1998 and will conclude by Patent and Trademark Office against the Common Criteria for 12:00 noon on Thursday, August 27, Information Technology Security 1998. Disclosure Document Program Evaluation, an emerging International ADDRESSES: Standards Organization (ISO) standard. The meeting will be held at ACTION: Proposed collection; comment Evaluation results will be validated by the Gulf Coast Research Laboratory, 703 request. NIAP leading to the issuance of a East Beach Drive, Ocean Springs, MS. SUMMARY: validation certificate and placement on FOR FURTHER INFORMATION CONTACT: The Department of Commerce a validated products list. Certificates for Steven Atran, Population Dynamics (DOC), as part of its continuing effort to the validated products will be Statistician, Gulf of Mexico Fishery reduce paperwork and respondent recognized by participants in mutual Management Council, 3018 U.S. burden, invites the general public and recognition agreements based on the Highway 301 North, Suite 1000, Tampa, other Federal agencies to comment on Common Criteria, thus reducing the FL 33619; telephone: 813–228–2815. the continuing and proposed need for multiple security evaluations. SUPPLEMENTARY INFORMATION: The Panel information collection, as required by will be re-convened to develop the Paperwork Reduction Act of 1995, This workshop is for the following Pub. L. 104–13 (44 U.S.C. 3506(c)(2)(A)). audiences: additional alternatives for the overfishing criteria as required by the DATES: Written comments must be • Manufacturers, developers, and Sustainable Fisheries Act (SFA). In a submitted on or before October 13, integrators of IT products interested in previous meeting held June 22–25, 1998. having their products evaluated against 1998, the Panel developed a generalized ADDRESSES: Direct all written comments the Common Criteria; to Linda Engelmeier, Departmental • procedure for selecting proxies for Testing laboratories interested in expressing maximum sustainable yield Forms Clearance Officer, Department of evaluating IT products to the Common (MSY) and optimum yield (OY) in terms Commerce, Room 5327, 14th and Criteria; of spawning potential ratio (SPR). The Constitution Avenue, NW, Washington, • Government and private sector Panel discussed, but did not come to a DC 20230. consumers desiring IT products consensus on, the use of the ratio of FOR FURTHER INFORMATION CONTACT: evaluated against the Common Criteria natural mortality rate to growth rate Requests for additional information and validated by NIAP. coefficients (the M/K ratio) as a scaling should be directed to the attention of The workshop will cover a variety of factor for setting appropriate levels of Robert J. Spar, Patent and Trademark topics to include: SPR. When it reconvenes, the Panel will Office, Washington, D.C. 20231, by • Introduction to IT product security re-examine the use of M/K ratios as a telephone at (703) 305–9285 or by evaluation; basis for resiliency of fish to overfishing. facsimile transmission to (703) 308– • Overview of the Common Criteria In addition, the Panel will examine 6916. Scheme; additional alternatives for MSY proxies SUPPLEMENTARY INFORMATION: • for red snapper, king mackerel, and red Status report on the Common drum based on juvenile fish I. Abstract Criteria and Common Evaluation recruitment, stock biomass levels, or The Disclosure Document Program Methodology; other relevant indices. allows inventors to submit papers that • Laboratory accreditation; Although other issues not contained provide evidence of the date of • Validation of evaluation results by in this agenda may come before the conception of an invention. The NIAP. Panels for discussion, in accordance disclosure document papers will be 43142 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices retained by the PTO for two years, III. Data Estimated Number of Respondents: during which time the inventors should OMB Number: 0651–0030. 27,000 responses per year. file a patent application if patent Form Number: PTO/SB/95. Estimated Time Per Response: It is protection is desired. Type of Review: Revision of a estimated to take approximately 12 currently approved collection. minutes to complete a disclosure II. Method of collection Affected Public: Individuals or document deposit request. By mail, facsimile and hand-carry households, businesses or other for- Estimated Total Annual Respondent when the inventor desires to participate profit, not-for-profit institutions, farms, Burden Hours: 5,400 hours per year. in the information collection. state, local or tribal governments, and Estimated Total Annual Respondent the Federal Government. Cost Burden: $54,000 per year.

Estimated Estimated Estimated Title of form Form Nos. time for re- annual bur- annual re- sponse den hours sponses

Disclosure Document Deposit Request ...... PTO/SB/95 12 mins .... 5,400 27,000

Totals ...... 5,400 27,000

Note: The time estimate for the form for licensing by the Department of the ‘‘Aliphatic Phenoxy includes the time to prepare the invention Navy. U.S. Patent Application Ser. No. Polyphthalocyanine’’; 4,259,471 entitled disclosure documents. 09/007,826 entitled ‘‘Phthalonitrile ‘‘Polyphenylether-Bridged IV. Request for Comments Prepolymerization Composition,’’ Navy Polyphthalocyanine’’; 4,304,896 entitled Case No. 78596. Comments are invited on: (a) Whether ‘‘Polyphthalocyanine Resins’’; 4,408,035 the proposed collection of information ADDRESSES: Requests for copies of the entitled ‘‘Phthalonitrile Resin from is necessary for the proper performance patent application cited should be Diphthalonitrile Monomer and Amine’’; of the functions of the agency, including directed to the Office of Naval Research, 4,410,676 entitled ‘‘Phenolic-Cured whether the information shall have ONR 00CC, Ballston Tower One, 800 Phthalonitrile Resins’’; 5,003,039 practical utility; (b) the accuracy of the North Quincy Street, Arlington, Virginia entitled ‘‘Amino Phenyl Containing agency’s estimate of the burden 22217–5660, and must include the Navy Curing Agent for High Performance (including hours and cost) of the Case number. Phthalonitrile Resin’’; 5,208,318 entitled proposed collection of information; (c) FOR FURTHER INFORMATION CONTACT: Mr. ‘‘Phosphazene-Containing Amine as ways to enhance the quality, utility, and R. J. Erickson, Staff Patent Attorney, Curing Agent for Phthalonitrile-Base clarity of the information to be Office of Naval Research, ONR 00CC, Polymer’’; 5,247,060 entitled ‘‘Curing collected; and (d) ways to minimize the Ballston Tower One, 800 North Quincy Phthalonitriles with Acid’’; 5,389,441 burden of the collection of information Street, Arlington, Virginia 22217–5660, entitled ‘‘Phthalonitrile Prepolymer as on respondents, e.g., the use of telephone (703) 696–4001. High Temperature Sizing Material for automated collection techniques or (Authority: 35 U.S.C. 207, 37 CFR Part 404.) Composite Fibers’’; and U.S. Patent other forms of information technology. Dated: August 4, 1998. Applications 08/940,043 entitled Comments submitted in response to Saundra K. Melancon, ‘‘Fiber-Reinforced Phthalonitrile this notice will be summarized or Composite Cured with Low-Reactivity included in the request for OMB Paralegal Specialist, Office of the Judge Advocate General, Alternate Federal Register Aromatic Amine Curing Agent’’; and 09/ approval of this information collection; Liaison Officer. 007,826 entitled ‘‘Phthalonitrile they will also become a matter of public [FR Doc. 98–21563 Filed 8–11–98; 8:45 am] record. Prepolymerization Composition’’ in the BILLING CODE 3810±FF±P field of high temperature resins for Dated: August 6, 1998. aircraft components. Linda Engelmeier, Departmental Forms Clearance Officer, Office DEPARTMENT OF DEFENSE DATES: Anyone wishing to object to the of the Chief Information Officer. grant of this license must file written [FR Doc. 98–21566 Filed 8–11–98; 8:45 am] Department of the Navy objections along with supporting BILLING CODE 3510±16±P evidence, if any, not later than October Notice of Intent to Grant Exclusive 13, 1998. Patent License; Dow-United Technologies Composite Products, ADDRESSES: Written objections are to be DEPARTMENT OF DEFENSE Inc. filed with the Office of Naval Research, ONR 00CC, Ballston Tower One, 800 Department of the Navy AGENCY: Department of the Navy, DOD. North Quincy Street, Arlington, Virginia Notice of Availability of Invention for ACTION: Notice. 22217–5660. Licensing; Government-Owned SUMMARY: The Department of the Navy FOR FURTHER INFORMATION CONTACT: Mr. Invention hereby gives notice of its intent to grant R. J. Erickson, Staff Patent Attorney, AGENCY: Department of the Navy, DOD. to Dow-United Technologies Composite Office of Naval Research, ONR 00CC, ACTION: Notice. Products, Inc., a revocable, Ballston Tower One, 800 North Quincy nonassignable, exclusive license in the Street, Arlington, Virginia 22217–5660, SUMMARY: The invention listed below is United States and certain foreign telephone (703) 696–4001. assigned to the United States countries, to practice the Government (Authority: 35 U.S.C. 207, 37 CFR Part 404) Government as represented by the owned inventions described in U.S. Secretary of the Navy and is available Patent Nos. 4,223,123 entitled Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43143

Dated: August 4, 1998. Ann Wallace, Records Management ADDRESSES: Onate Monument and Saundra K. Melancon, Team (HR–424), Department of Energy, Visitors’ Center, Highway 285, Alcalde, Paralegal Specialist, Office of the Judge Washington, DC 20585, (301) 903–4353. New Mexico. Advocate General, Alternate Federal Register SUPPLEMENTARY INFORMATION: This FOR FURTHER INFORMATION CONTACT: Ms. Liaison Officer. package contains the following Ann DuBois, Northern New Mexico [FR Doc. 98–21562 Filed 8–11–98; 8:45 am] information: (1) Title of the information Citizens’ Advisory Board, Los Alamos BILLING CODE 3810±FF±P collection package; (2) current OMB National Laboratory, 528 35th Street, control number; (3) type of respondents; Los Alamos, New Mexico 87544, (505) (4) estimated number of respondents; (5) 665–5048. DEPARTMENT OF ENERGY estimated total number of burden hours, SUPPLEMENTARY INFORMATION: including hours required to provide and Agency Information Collection Under Purpose of the Board: The purpose of review the data; (6) purpose; and (7) the the Advisory Board is to make Review by the Office of Management number of collection categories. and Budget (OMB) recommendations to DOE and its Package Title: Industrial Relations. regulators in the areas of environmental AGENCY: Department of Energy. Current OMB No.: 1910–0600. restoration, waste management, and Type of Respondents: DOE ACTION: Submission for OMB review; related activities. Management and Operating Contractors comment request. (M&O), and Management and Operating Tentative Agenda SUMMARY: The Department of Energy type (M&O Type) Contractors. 6:00 p.m. Call to Order by DOE (DOE) intends to renew an information Estimated Number of Responses: 693 6:00 p.m. Welcome by Chair, Roll Call, collection package with the Office of Estimated Total Burden Hours: 27,722 Approval of Agenda and Minutes Management and Budget (OMB) under Purpose: This information is required 6:30 p.m. Public Comments the Paperwork Reduction Act of 1995. for management oversight of DOE M&O 7:00 p.m. Break The Industrial Relations collection and M&O Type Contracts/Contractors 7:15 p.m. Board Business package, OMB Control No.1910–0600, and to ensure that the programmatic and 9:00 p.m. Adjourn collects information from DOE’s administrative management Public Participation: The meeting is Management and Operating (M&O) requirements of the contract are open to the public. The public may file Contractors, and Management and managed efficiently and effectively. written statements with the Committee, Operating Type (M&O Type) Contractors This package contains 27 categories of either before or after the meeting. A concerning the management and information and/or record keeping sign-up sheet will also be available at administration of their workforce. This requirements. information is used to exercise the door of the meeting room to indicate management oversight and cost control Statutory Authority: Section 3506(c)(2)(A) a request to address the Board. of our contracts and the application of of the Paperwork Reduction Act of 1995 Individuals who wish to make oral (Pub. L. No. 104–13). statutory and contractual requirements. presentations, other than during the The collection of this data is critical to Issued in Washington, DC, on August 6, public comment period, should contact 1998. the Department. It is used to ensure that Ms. Ann DuBois at (505) 665–5048 five the contractors satisfy their contractual Stephen J. Michelsen, (5) business days prior to the meeting to obligations; contract funds are expended Director, Office of Contract and Resource request that the Board consider the item as intended; and to detect and eliminate Management. for inclusion at this or a future meeting. fraud, waste, and abuse. The data [FR Doc. 98–21599 Filed 8–11–98; 8:45 am] The Designated Federal Officer is collected involves contractor BILLING CODE 6450±01±P empowered to conduct the meeting in a compensation, pension, health and fashion that will facilitate the orderly welfare data insurance claims, and conduct of business. employment type information. DEPARTMENT OF ENERGY Minutes: The minutes of this meeting DATES AND ADDRESSES: Comments will be available for public review and Environmental Management Site- copying at the Freedom of Information regarding this information collection Specific Advisory Board, Department package should be submitted to the Public Reading Room, 1E–190, Forrestal of Energy, Los Alamos National Building, 1000 Independence Avenue, OMB Desk Officer at the following Laboratory address no later than September 11, SW, Washington, DC 20585 between 1998: OMB Desk Officer, Office of AGENCY: Department of Energy. 9:00 a.m. and 4 p.m., Monday–Friday, except Federal holidays. Minutes will Management and Budget (OIRA), Room ACTION: Notice of open meeting. 3001, New Executive Office Building, also be available by writing to Ms. M.J. Washington, DC 20503. SUMMARY: Pursuant to the provisions of Byrne, Deputy Designated Federal If you wish to submit comments, but the Federal Advisory Committee Act Officer, Department of Energy, Los find it difficult to do so within the time (Pub. L. No. 92–463, 86 Stat. 770) notice Alamos Area Office, 528 35th Street, Los period allowed, please notify the OMB is hereby given of the following Alamos, NM 87185–5400. Desk Officer of your intent as soon as Advisory Committee meeting: Issued at Washington, DC on August 6, possible. The Desk Officer may be Environmental Management Site- 1998. reached at (202) 395–3087. In addition, Specific Advisory Board (EM SSAB), Althea T.Vanzego, please notify the DOE contact listed Los Alamos National Laboratory. Acting Deputy Advisory Committee below. DATES: Wednesday, August 26, 1998: Management Officer. FOR FURTHER INFORMATION AND COPIES OF 6:00 p.m.–9:00 p.m.; 6:30 p.m. to 7:00 [FR Doc. 98–21598 Filed 8–11–98; 8:45 am] RELEVANT MATERIALS CONTACT: Mary p.m. (public comment session). BILLING CODE 6450±01±P 43144 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

DEPARTMENT OF ENERGY delete the reference to GISB Standard Gas Pipeline Company of America’s 4.3.4. transmission system. CIG asserts that Federal Energy Regulatory Blue Lake states that copies of the they abandoned the upstream gathering Commission filing were served upon the company’s facilities in its spindown filing by [Docket No. RP98±318±001] jurisdictional customer. transfer to CIG Field Services. CIG Any person desiring to protest this declares that a final Order Denying ANR Storage Company; Notice of filing should file a protest with the Rehearing and Dismissing Protect Compliance Filing Federal Energy Regulatory Commission, authorizing abandonment was issued on 888 First Street, NE, Washington, DC September 25, 1996, in Docket No. August 7, 1998. 20426, in accordance with Section CP96–41. CP96–41. CIG states that CIG Take notice that on August 4, 1998, 385.211 of the Commission’s Rules and Field Services has now entered into an ANR Storage Company (ANRS) tendered Regulations. All such protests must be agreement to sell the upstream gathering for filing as part of its FERC Gas Tariff, filed as provided in Section 154.210 of facilities to BTA and as the Antelope Original Volume No. 1, Substitute the Commission’s Regulations. Protests Ridge Meter Station is on CIG’s books as Fourth Revised Sheet No. 153, to be will be considered by the Commission a transmission system facility, CIG is effective August 1, 1998. in determining the appropriate action to proposing to abandon this facility by ANRS states that the attached tariff be taken, but will not serve to make sale to BTA. sheet is being filed in compliance with protestants parties to the proceedings. Any person or the Commission’s staff the Commission’s Order issued on July Copies of this filing are on file with the may, within 45 days after issuance of 24, 1998 in the above captioned docket. Commission and are available for public the Instant notice by the Commission, The order required ANR to delete the inspection in the Public Reference file pursuant to Rule 214 of the reference to GISB Standard 4.3.4. Room. Commission’s Procedural Rules (18 CFR ANRS states that copies of the filing David P. Boergers, were served upon the company’s 385.214) a motion to intervene or notice Secretary. of intervention and pursuant to Section Jurisdictional customers. [FR Doc. 98–21626 Filed 8–4–98; 8:45 am] Any person desiring to protest this 157.205 of the Regulations under the filing should file a protest with the BILLING CODE 6717±01±M Natural Gas Act (18 CFR 157.205) a Federal Energy Regulatory Commission, protest to the request. If no protest is filed within the time allowed therefor, 888 First Street, NE, Washington, DC DEPARTMENT OF ENERGY 20426, in accordance with Section the proposed activity shall be deemed to 385.211 of the Commission’s Rules and Federal Energy Regulatory be authorized effective the day after the Regulations. All such protests must be Commission time allowed for filing a protest. If a filed as provided in section 154.210 of protest is filed and not withdrawn [Docket No. CP98±705±000] the Commission’s Regulations. Protests within 30 days after the time allowed for filing a protest, the instant request will be considered by the Commission Colorado Interstate Gas Company; in determining the appropriate action to shall be treated as an application for Notice of Request Under Blanket authorization pursuant to Section 7 of be taken, but will not serve to make Authorization protestants parties to the proceedings. the Natural Gas Act. Copies of this filing are on file with the August 7, 1998. David P. Boergers, Commission and are available for public Take notice that on July 31, 1998, Secretary. inspection in the Public Reference Colorado Interstate Gas Company (CIG), [FR Doc. 98–21620 Filed 8–11–98; 8:45 am] Room. P. O. Box 1087, Colorado Springs, BILLING CODE 6717±01±M David P. Boergers, Colorado 74101, filed in Docket No. Secretary. CP98–705–000 a request pursuant to [FR Doc. 98–21625 Filed 8–11–98; 8:45 am] Sections 157.205 and 157.216 of the DEPARTMENT OF ENERGY Commission’s Regulations under the BILLING CODE 6717±01±M Natural Gas Act (18 CFR 157.205, Federal Energy Regulatory 157.216) for authorization to abandon Commission DEPARTMENT OF ENERGY the Antelope Ridge Meter Station by sale of BTA Oil Producers (BTA), [Docket No. GT98±87±000] Federal Energy Regulatory located in Lea County, New Mexico, Commission under CIG’s blanket certificate issued in Kentucky West Virginia Gas Company, Docket No. CP83–21–000, pursuant to L.L.C.; Notice of Refund Report [Docket No. RP98±324±001] Section 7(c) of the Natural Gas Act, all as more fully set forth in the request that August 7, 1998. Blue Lake Gas Storage Company; Take notice that on July 29, 1998, Notice of Compliance Filing is on file with the Commission and open to public inspection. Kentucky West Virginia Gas Company, August 7, 1998. CIG proposes to abandon the L.L.C., (Kentucky West) tendered for Take notice that on August 4, 1998, Antelope Ridge Meter Station, located filing a report summarizing the refunds blue Lake Gas Storage Company (Blue in Section 24, Township 23 South, of GRI overcollections which were Lake) tendered for filing as part of its Range 34 East, Lea County, New credited to the July billing invoice of its FERC Gas Tariff, First Revised Volume Mexico. CIG declares that the meter sole eligible customers. No. 1, Substitute Fourth Revised Sheet station was authorized pursuant to an Kentucky West states that on May 29, No. 153, to be effective August 1, 1998. order that was issued March 26, 1976 in 1998, it received a refund from GRI of Blue Lake states that the attached Docket No. CP75–189. CIG states that $36,651 for collections in excess of tariff sheet is being filed in compliance the gathering facilities upstream of the 105% of Kentucky West 1997 GRI with the Commission’s Order issued on Antelope Ridge Meter Station were funding level. Kentucky West states that July 27, 1998, in the above captioned originally owned and operated by CIG it credited this amount to the account of docket. The order required Blue Lake to and the meter measured gas into Natural its sole eligible firm customers. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43145

Kentucky West states that a copy of its December 1, 1997, motion rates Secretary. Copies are also being served report has been served on its customers currently in effect. The rates will be on all interruptible customers as of this and interested state commissions. subject to refund pending a final date. Any person desiring to be heard or to Commission Order approving the Any person desiring to protest this protest said filing should file a motion Settlement. In accordance with the filing should file a protest with the to intervene or a protest with the terms of the settlement, an Order will Federal Energy Regulatory Commission, Federal Energy Regulatory Commission, become final on the last date for filing 888 First Street, NE, Washington, DC 888 First Street, N.E., Washington, DC for rehearing when no such request has 20426, in accordance with Section 20426, in accordance with Sections been filed or the date of a Commission 385.211 of the Commission’s Rules and 385.214 or 385.211 of the Commission’s Order on all requests for rehearing. Regulations. All such protests must be Rules and Regulations. All such motions Koch also states that it has served filed as provided in Section 154.210 of or protests must be filed on or before copies of the instant filing upon each the Commission’s Regulations. Protests August 14, 1998. Protests will be affected customer, interested state will be considered by the Commission considered by the Commission in commissions, and other parties. in determining the appropriate action to determining the appropriate action to be Any person desiring to protest this be taken, but will not serve to make taken, but will not serve to make filing should file a protest with the protestant parties to the proceedings. protestants parties to the proceedings. Federal Energy Regulatory Commission, Copies of this filing are on file with the Any person wishing to become a party 888 First Street, NE, Washington, DC Commission and are available for public must file a motion to intervene. Copies 20426, in accordance with Section inspection in the Public Reference of this filing are on file with the 385.211 of the Commission’s Rules and Room. Commission and are available for public Regulations. All such protests must be David P. Boergers, inspection in the Public Reference filed as provided in Section 154.210 of Secretary. Room. the Commission’s Regulations. Protests [FR Doc. 98–21629 Filed 8–11–98; 8:45 am] will be considered by the Commission David P. Boergers, BILLING CODE 6717±01±M in determining the appropriate action to Secretary. be taken, but will not serve to make [FR Doc. 98–21621 Filed 8–11–98; 8:45 am] protestants parties to the proceedings. DEPARTMENT OF ENERGY BILLING CODE 6717±01±M Copies of this filing are on file with the Commission and are available for public Federal Energy Regulatory inspection in the Public Reference DEPARTMENT OF ENERGY Commission Room. [Docket No. RP98±370±000] Federal Energy Regulatory David P. Boergers, Commission Secretary. Northwest Pipeline Corporation; Notice [FR Doc. 98–21569 Filed 8–11–98; 8:45 am] of Petition for Grant of Limited Waivers [Docket No. RP97±373±014] BILLING CODE 6717±01±M of Tariff Koch Gateway Pipeline Company; August 7, 1998. Notice of Filing DEPARTMENT OF ENERGY Take notice that on August 3, 1998, August 6, 1998. pursuant to Rule 207(a)(5) of the Take notice that on August 4, 1998, Federal Energy Regulatory Commission’s Rules of Practice and Koch Gateway Pipeline Company Commission Procedure, 18 CFR 385.207(a)(5), Northwest Pipeline Corporation (Koch) tendered for filing as part of its [Docket No. RP98±261±001] FERC Gas Tariff, Fifth Revised Volume (Northwest) tendered for filing a No. 1, the following tariff sheets, to National Fuel Gas Supply Corporation; Petition for Grant of Limited Waivers of become effective September 1, 1998: Notice of Compliance Filing Tariff. Northwest seeks a waiver of its Fifth Revised Volume No. 1 August 7, 1998. applicable tariff provisions in order (1) Twenty-third Revised Sheet No. 20 Take notice that on August 5, 1998, to allow Pacific Interstate Gas Twentieth Revised Sheet No. 21 Twenty-first Revised Sheet No. 22 National Fuel Gas Supply Corporation Transmission Company (Pacific) to Twenty-fourth Revised Sheet No. 24 (National Fuel) tendered for filing as permanently transfer its firm Fifth Revised Sheet No. 28 part of its FERC Gas Tariff, Fourth transportation capacity on Northwest to Second Revised Sheet No. 304 Revised Volume No. 1, Sub. Second Pan-Alberta Gas (U.S.) By assignment of Third Revised Sheet No. 1500 Revised Sheet No 457 and Bus. First the underlying agreements under terms Fifth Revised Sheet No. 1501 Revised Sheet No. 458, with an effective acceptable to Northwest and (2) to allow Second Revised Sheet No. 3612 date of August 1, 1998. Pan-Alberta (U.S.) to retain the priority First Revised Sheet No. 3613 National Fuel states that the purpose of service transportation service Original Sheet No. 3614 of this filing is to submit tariff sheets agreement. Koch states that the purpose of this revised to conform to the Commission Northwest states that a copy of this filing is to place the rates and certain letter order issued on July 24, 1998, in filing has been served upon Northwest’s terms and conditions into effect related Docket No. RP98–261–000 and to jurisdictional customers and upon to the Offer of Settlement and conform to the GISB Standards affected state regulatory commissions. Stipulation and Agreement (Settlement) incorporated by Order No. 587–G, Any person desiring to be heard or to resolving all aspects of Koch’s costs of Standards for Business Practices of protest said filing should file a motion service and rate design in Docket No. Interstate Natural Gas Pipelines. to intervene or a protest with the RP97–373 which was accepted by the National Fuel states that it is serving Federal Energy Regulatory Commission, Order issued August 3, 1998. These copies of this filing with its firm 888 First Street, NE, Washington, DC rates are based on a cost of service of customers, interested state commissions 20426, in accordance with Sections $187,980,052, a decrease of $56,022,946 and each person designated on the 385.214 or 385.211 of the Commission’s from the cost of services reflected in the official service list compiled by the Rules and Regulations. All such motions 43146 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices or protests must be filed on or before inspection in the Public Reference Order No. 587–G. By letter order issued August 14, 1998. Protests will be Room. July 21, 1998, the Commission directed considered by the Commission in David P. Boergers, Williams to file a revised tariff sheet to determining the appropriate action to be Secretary. delete GISB Standard Number 4.3.4 and taken, but will not serve to make [FR Doc. 98–21628 Filed 8–11–98; 8:45 am] to add GISB Standard Numbers 1.4.6, protestants parties to the proceedings. BILLING CODE 6717±01±M 2.4.6, 4.3.16, and 5.3.30. Williams states Any person wishing to become a party that the filing is being made to comply must file a motion to intervene. Copies with the order. of this filing are on file with the DEPARTMENT OF ENERGY Williams states that a copy of its filing Commission and are available for public was served on all of Williams’ inspection in the Public Reference Federal Energy Regulatory jurisdictional customers and interested Room. Commission state commissions. David P. Boergers, [Docket No. RP98±289±001] Any person desiring to protest this Secretary. filing should file a protest with the [FR Doc. 98–21627 Filed 8–11–98; 8:45 am] Texas Gas Transmission Corporation; Federal Energy Regulatory Commission, BILLING CODE 6717±01±M Notice of Waiver Request 888 First Street, N.E., Washington, D.C. 20426, in accordance with Section August 5, 1998. 385.311 of the Commission’s Rules and DEPARTMENT OF ENERGY Take notice that on July 31, 1998, Regulations. All such protests must be Texas Gas Transmission Corporation filed as provided in Section 154.210 of Federal Energy Regulatory (Texas Gas) filed a request for a waiver the Commission’s Regulations. Protests Commission from the Commission’s requirement to will be considered by the Commission [Docket No. RP98±373±000] comply with 18 CFR 284.10(c)(3)(iii) in determining the appropriate action to regarding an electronic cross-reference be taken, but will not serve to make Questar Pipeline Company; Notice of table correlating the names of its protestants parties to the proceedings. Tariff Filing shippers with their DUNS numbers. Copies of this filing are on file with the Any person desiring to protest this Commission and are available for public August 7, 1998. filing should file a protest with the inspection in the Public Reference Take notice that on August 5, 1998, Federal Energy Regulatory Commission, Room. Questar Pipeline Company (Questar) 888 First Street, N.E., Washington, D.C. David P. Boergers, tendered for filing as part of its FERC 20426, in accordance with Section Secretary. Gas Tariff, First Revised Volume No. 1, 385.211 of the Commission’s Rules and Third Revised Sheet No. 67, First Regulations. All such protests must be [FR Doc. 98–21624 Filed 8–11–98; 8:45 am] Revised Sheet No. 87 and Second filed as provided on or before August BILLING CODE 6717±01±M Revised Sheet No. 95. 12, 1998. Protests will be considered by Questar states that the purpose of this the Commission in determining the DEPARTMENT OF ENERGY filing is three fold. First, to make a appropriate action to be taken, but will technical correction in § 6.24(b) of the not serve to make protestants parties to Federal Energy Regulatory General Terms and Conditions of the proceedings. Copies of this filing are Commission Questar’s tariff; second, to explain that on file with the Commission and are Questar’s standard calibration cycle is available for public inspection in the [Docket No. ER94±24±025, et al.] quarterly, rather than monthly and Public Reference Room. Enron Power Marketing, Inc., et al., third, to provide for notification, via David P. Boergers, electronic means, of a force majeure Electric Rate and Corporate Regulation condition on the pipeline. Secretary. Filings Questar states further that a copy of [FR Doc. 98–21570 Filed 8–11–98; 8:45 am] this filing has been served upon its BILLING CODE 6717±01±M August 3, 1998. customers, the Public Service Take notice that the following filings Commission of Utah and the Public have been made with the Commission: DEPARTMENT OF ENERGY Service Commission of Wyoming. 1. Enron Power Marketing, Inc. Any person desiring to be heard or to Federal Energy Regulatory protest said filing should file a motion [Docket No. ER94–24–025] Commission to intervene or a protest with the Take notice that on July 29, 1998, Federal Energy Regulatory Commission, [Docket No. RP98±316±001] pursuant to Section 35.15(c), 18 CFR 888 First Street, NE, Washington, DC 35.15(c), of the Commission’s 20426, in accordance with Sections Williams Gas Pipelines Central, Inc.; regulations, Enron Power Marketing, 385.214 or 385.211 of the Commission’s Notice of Compliance Filing Inc. (EPMI), filed a notice of termination Rules and Regulations. All such motions August 7, 1998. of its Confirmations with The Power or protests must be filed in accordance Take notice that on July 31, 1998, Company of America, L.P. (PCA), with Section 154.210 of the Williams Gas Pipelines Central, Inc. entered into between EPMI and PCA Commission’s Regulations. Protests will (Williams), tendered for filing to become EPMI’s Rate Schedule FERC No. be considered by the Commission in part of its FERC Gas Tariff, Original In the alternative, EPMI has filed a determining the appropriate action to be Volume No. 1, the following tariff motion for waiver of the Commission’s taken, but will not serve to make sheets, with the proposed effective date 60-day prior notice requirement to protestants parties to the proceedings. of August 1, 1998: permit the termination to be effective on Any person wishing to become a party July 8, 1998, for good cause shown. must file a motion to intervene. Copies Substitute First Revised Sheet No. 297 Comment date: August 18, 1998, in of this filing are on file with the Williams states that on July 1, 1998, accordance with Standard Paragraph E Commission and are available for public it made a filing in compliance with at the end of this notice. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43147

2. The DTE Energy Trading, Inc. (California ISO) under WWP’s market- sales tariff on file with the Commission. [Docket No. ER97–3834–003] based tariff. In its amended filing, WWP The agreement is proposed to become states that it expects to sell economy effective July 1, 1998. Take notice that on July 29, 1998, The energy service, firm capacity service, Copies of the filing were served upon DTE Energy Trading, Inc., tendered for and firm energy service to the California Enron Power Marketing, Inc. and the filing its report of transactions for the ISO when and as appropriate. WWP also Kansas Corporation Commission. second calendar quarter of 1998 which stated in its amended filing that if Comment date: August 18, 1998, in ended on June 30, 1998. permitted in the future, WWP may bid accordance with Standard Paragraph E Comment date: August 18, 1998, in at the end of this notice. accordance with Standard Paragraph E into the auction to sell Replacement at the end of this notice. Reserve Service to the California ISO 9. Wisconsin Public Service Corp. under its market-based rate tariff 3. Bangor Energy Resale, Inc. authority. [Docket No. ER98–3952–000] Take notice that on July 29, 1998, [Docket No. ER98–459–003] Comment date: August 18, 1998, in accordance with Standard Paragraph E Wisconsin Public Service Corporation Take notice that on July 29, 1998, at the end of this notice. (WPSC) tendered for filing an executed Bangor Energy Resale, Inc. submitted a Short Term Firm Point-To-Point Quarterly Report of Transactions for the 6. Carolina Power & Light Company Transmission Service Agreement period April 1 through June 30, 1998. [Docket No. ER98–3948–000] between WPSC and Merchant Energy This filing was made in compliance Group of the Americas, Inc., providing with the Commission order dated Take notice that on July 29, 1998, Carolina Power & Light Company for transmission service under the Open December 23, 1997 in Docket No. ER98– Access Transmission Service Tariff, 459–000. (CP&L), tendered for filing executed Service Agreements with Alabama FERC Original Volume No. 11. Comment date: August 18, 1998, in Comment date: August 18, 1998, in Electric Cooperative, Inc.; Atlantic City accordance with Standard Paragraph E accordance with Standard Paragraph E Electric Company; Columbia Energy at the end of this notice. at the end of this notice. Power Marketing Corporation; DTE 4. Conectiv Energy Supply, Inc. Energy Trading; Engage Energy US, L.P.; 10. Wisconsin Public Service Corp. [Docket No. ER98–2045–002] Illinois Power Company; and Strategic [Docket No. ER98–3953–000] Energy Ltd. under the provisions of Take notice that on July 29, 1998, Take notice that on July 29, 1998, CP&L’s Market-Based Rates Tariff, FERC Conectiv Energy Supply, Inc. (Conectiv) Wisconsin Public Service Corporation Electric Tariff No. 4. These Service tendered for filing a summary of short- (WPSC) tendered for filing an executed Agreements supersede the unexecuted term transactions made during the Non-Firm Point-To-Point Transmission Agreements originally filed in Docket second quarter of calendar year 1998 Service Agreement between WPSC and No. ER98–3385–000. under Conectiv’s Market-Based Sales Merchant Energy Group of the Copies of the filing were served upon and Resale Transmission and Ancillary Americas, Inc., provides for the North Carolina Utilities Commission Services Tariff, Rate Schedule FERC No. transmission service under the Open and the South Carolina Public Service 1, filed by Conectiv in Docket No. Access Transmission Service Tariff, Commission. ER98–2045–000. FERC Original Volume No. 11. Comment date: August 18, 1998, in Comment date: August 18, 1998, in Comment date: August 18, 1998, in accordance with Standard Paragraph E accordance with Standard Paragraph E accordance with Standard Paragraph E at the end of this notice. at the end of this notice. at the end of this notice. 5. Washington Water Power 7. Griffin Energy Marketing, L.L.C. 11. Unicom Power Marketing, Inc. [Docket No. ER98–3949–000] [Docket No. ER98–2721–000] [Docket No. ER98–3955–000] Take notice that on July 29, 1998, Take notice that on July 29, 1998, Take notice that on July 30, 1998, Washington Water Power (WWP), Griffin Energy Marketing, L.L.C. (GEM) Unicom Power Marketing, Inc. tendered with the Federal Energy tendered for filing a Notice of (Unicom), submitted its quarterly Regulatory Commission, pursuant to 18 Cancellation and Motion for Waiver of market-based transaction report for the CFR Section 35.13, and in accordance the 60-Day Notice Requirement Under calendar quarter ending June 30, 1998. with the Commission’s letter order 35.15, relating to the following Comment date: August 18, 1998, in dated June 30, 1998, an amended agreement: Electric Power Service accordance with Standard Paragraph E unexecuted Service Agreement and Agreement dated January 26, 1998 at the end of this notice. Certificate of Concurrence under WWP’s between GEM and The Power Company 12. Oklahoma Gas and Electric Co. Electric Tariff First Revised Volume No. of America, L.P., entered under GEM’s 9, with Participants in the California Rate Schedule FERC No. 1. [Docket No. ER98–3956–000] Power Exchange. Comment date: August 18, 1998, in Take notice that on July 29, 1998, The Commission’s June 30 letter order accordance with Standard Paragraph E Oklahoma Gas and Electric Company directed WWP to list the customer as at the end of this notice. (OG&E), tendered for filing service Participants in the California Power 8. Western Resources, Inc. agreements for parties to take service Exchange rather than as the California under its short-term power sales Power Exchange. WWP requests waiver [Docket No. ER98–3951–000] agreement. of the prior notice requirement and Take notice that on July 29, 1998, Copies of this filing have been served requests an effective date of April 1, Western Resources, Inc., tendered for on each of the affected parties, the 1998. filing an agreement between Western Oklahoma Corporation Commission and The Commission’s June 30 letter order Resources and Enron Power Marketing, the Arkansas Public Service also directed WWP to provide Inc. Western Resources states that the Commission. information regarding the types of purpose of the agreement is to permit Comment date: August 18, 1998, in power to be sold to the California the customers to take service under accordance with Standard Paragraph E Independent System Operator Western Resources’ market-based power at the end of this notice. 43148 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

13. Consolidated Edison Company, New Comment date: August 18, 1998, in tendered for filing service agreements York, Inc. accordance with Standard Paragraph E pursuant to Green Mountain’s FERC [Docket No. ER98–3957–000] at the end of this notice. Electric Tariff No. 2. Green Mountain requests an effective date of July 1, 1998 17. Consolidated Edison Company of Take notice that on July 29, 1998 for the service agreement with H.Q. New York, Inc. Consolidated Edison Company of New Energy Services (U.S.) Inc., an effective York, Inc. (Con Edison) tendered for [Docket No. ER98–3960–000] date of September 13, 1996 for the filing a service agreement to provide Take notice that on July 29, 1998, service agreement with AIG Trading and firm transmission service pursuant to its Consolidated Edison Company of New an effective date of August 1, 1998 for Open Access Transmission Tariff to York, Inc. (Con Edison), tendered for the other service agreements. Coral Power L.L.C. (Coral). filing a service agreement to provide Comment date: August 18, 1998, in Con Edison states that a copy of this firm point-to-point transmission service accordance with Standard Paragraph E filing has been served by mail upon pursuant to its Open Access at the end of this notice. Coral. Transmission Tariff to PP&L Energy 22. Coral Power, L.L.C. Comment date: August 18, 1998, in Marketing (PP&L). accordance with Standard Paragraph E Con Edison states that a copy of this [Docket No. ER98–3968–000] at the end of this notice. filing has been served by mail upon Take notice that on July 29, 1998, 14. Consolidated Edison Company of PP&L. Coral Power, L.L.C. (Coral), filed a New York, Inc. Comment date: August 18, 1998, in notice of termination and alternative accordance with Standard Paragraph E request for waiver of the 60-day [Docket No. ER98–3958–000] at the end of this notice. advance-notice requirement, to be Take notice that on July 29, 1998, effective June 30, 1998, relating to 18. Commonwealth Edison Co. Consolidated Edison Company of New Coral’s termination of power sales York, Inc. (Con Edison), tendered for [Docket No. ER98–3962–000] confirmations with The Power Company filing a service agreement to provide Take notice that on July 30, 1998, of America, L.P., conducted pursuant to firm point-to-point transmission service Commonwealth Edison (Edison) the Western Systems Power Pool pursuant to its Open Access submitted its quarterly market-based Agreement. Transmission Tariff to PP&L Inc. transaction report for the calendar Comment date: August 18, 1998, in (PP&L). quarter ending June 30, 1998. accordance with Standard Paragraph E Con Edison states that a copy of this Comment date: August 18, 1998, in at the end of this notice. filing has been served by mail upon accordance with Standard Paragraph E 23. Green Mountain Power Corp. PP&L. at the end of this notice. Comment date: August 18, 1998, in [Docket No. ER98–3969–000] 19. Florida Power Corp. accordance with Standard Paragraph E Take notice that on July 29, 1998, at the end of this notice. [Docket No. ER98–3964–000] Green Mountain Power Corporation 15. Consolidated Edison Company of Take notice that on July 29, 1998, tendered for filing a Contract with New York, Inc. Florida Power Corporation submitted a Hydro-Qu´ bec for the purchase of call report of short-term transactions that options by Hydro-Que´bec. Green [Docket No. ER98–3959–000] occurred under its Market-Based Rate Mountain requests an effective date of Take notice that on July 29, 1998, Wholesale Power Sales Tariff (FERC August 1, 1998. Consolidated Edison Company of New Electric Tariff, Original Volume No. 8, Comment date: August 18, 1998, in York, Inc. (Con Edison), tendered for and First Revised Volume No. 8) during accordance with Standard Paragraph E filing a service agreement to provide the quarter ending June 30, 1998. at the end of this notice. firm point-to-point transmission service Comment date: August 18, 1998, in 24. Long Island Lighting Company pursuant to its Open Access accordance with Standard Paragraph E Transmission Tariff to Coral Power at the end of this notice. [Docket No. ER98–3970–000] L.L.C. (Coral). 20. Coral Power, L.L.C. Take notice that on July 29, 1998, the Con Edison states that a copy of this Long Island Power Authority filing has been served by mail upon [Docket No. ER98–3965–000] (Authority), on behalf of its subsidiary, Coral. Take notice that on July 29, 1998, Long Island Lighting Company (LILCO), Comment date: August 18, 1998, in Coral Power, L.L.C. (Coral), filed a d/b/a LIPA tendered for filing Notices of accordance with Standard Paragraph E notice of termination and alternative Cancellation of Service Agreement Nos. at the end of this notice. request for waiver of the 60-day 1 through 54 under LILCO’s Power Sales 16. Consolidated Edison Company of advance-notice requirement, to be Tariff, FERC Electric Tariff No. 1. New York, Inc. effective July 1, 1998, relating to Coral’s The Authority requests that the termination of power sales Commission deem that these notices of [Docket No. ER98–3961–000] confirmations with Federal Energy cancellation were effective as of May 29, Take notice that on July 29, 1998, Sales, Inc., conducted pursuant to the 1998, the date of LIPA’s purchase of Consolidated Edison Company of New Western Systems Power Pool LILCO. The cancellation is attributable York, Inc. (Con Edison), tendered for Agreement. to the purchase of LILCO by the filing a service agreement to provide Comment date: August 18, 1998, in Authority, a corporate municipal firm point-to-point transmission service accordance with Standard Paragraph E instrumentality and political pursuant to its Open Access at the end of this notice. subdivision of the State of New York. Transmission Tariff to PP&L Energy 21. Green Mountain Power Corp. LILCO, now doing business as LIPA, is Marketing (PP&L). now a municipality within the meaning Con Edison states that a copy of this [Docket No. ER98–3967–000] of Section 201(f) of the Federal Power filing has been served by mail upon Take notice that on July 29, 1998, Act and is no longer required to file or PP&L. Green Mountain Power Corporation, maintain its contracts as rate schedules Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43149 with Commission. The underlying Service Agreement No. 37—Entergy Power Standard Paragraphs contracts are not being terminated. Marketing Corporation Notice of the proposed cancellation Service Agreement No. 38—Promark Energy, E. Any person desiring to be heard or and the appropriate rate schedule Inc. to protest said filing should file a designation has been served upon the Service Agreement No. 39—Orange and motion to intervene or protest with the following: Rockland Utilities Federal Energy Regulatory Commission, Service Agreement No. 40—PacifiCorp Power 888 First Street, N.E., Washington, D.C. Service Agreement No. 1—Enron Power Marketing 20426, in accordance with Rules 211 Marketing, Inc. Service Agreement No. 41—Central Maine Service Agreement No. 2—Coastal Electric and 214 of the Commission’s Rules of Power Company Practice and Procedure (18 CFR 385.211 Services Company Service Agreement No. 42—Tractebel Energy Service Agreement No. 3—New York Power Marketing, Inc. and 18 CFR 385.214). All such motions Authority Service Agreement No. 43—Village of or protests should be filed on or before Service Agreement No. 4—CNG Power Freeport (NY) the comment date. Protests will be Services Corporation Service Agreement No. 44—Niagara Mohawk considered by the Commission in Service Agreement No. 5—PECO Energy Power Corporation determining the appropriate action to be Company Service Agreement No. 45—Constellation taken, but will not serve to make Service Agreement No. 6—Phibro Inc. Power Source, Inc. Service Agreement No. 7—KCS Power protestants parties to the proceeding. Service Agreement No. 46—New Energy Marketing, Inc. Any person wishing to become a party Service Agreement No. 8—Sonat Power Ventures, LLC must file a motion to intervene. Copies Marketing Inc. Service Agreement No. 47—USGen Power of these filings are on file with the Service Agreement No. 9—Aquila Power Services, LP Commission and are available for public Service Agreement No. 48—North American Corporation inspection. Service Agreement No. 10—Maine Public Energy Conservation David P. Boergers, Service Company Service Agreement No. 49—Green Mountain Service Agreement No. 11—LG&E Energy Power Corporation Secretary. Marketing Inc. Service Agreement No. 50—Virginia Electric [FR Doc. 98–21572 Filed 8–11–98; 8:45 am] Service Agreement No. 12—Rainbow Energy and Power Company BILLING CODE 6717±01±P Marketing Corporation Service Agreement No. 51—NGE Generation, Service Agreement No. 13—KN Services, Inc. Inc. Service Agreement No. 14—Village of Service Agreement No. 52—SCANA Energy DEPARTMENT OF ENERGY Greenport (NY) Marketing, Inc. Service Agreement No. 15—Village of Service Agreement No. 53—FirstEnergy Federal Energy Regulatory Trading & Power Marketing, Inc. Rockville Centre (NY) Commission Service Agreement No. 16—Vitol Gas & Service Agreement No. 54—Cinergy Capital & Electric, LLC Trading, Inc. Service Agreement No. 17—TransCanada [Docket No. EF98±5031±000, et al.] Energy Ltd. Comment date: August 18, 1998, in Service Agreement No. 18—NorAm Energy accordance with Standard Paragraph E Western Area Power Administration, et Services, Inc. at the end of this notice. al. Electric Rate and Corporate Service Agreement No. 19—Northeast Regulation Filings Utilities Services Company 25. Delmarva Power & Light Co. Service Agreement No. 20—Cinergy [Docket No. ER98–3973–000] August 5, 1998. Operating Companies Take notice that the following filings Take notice that on July 29, 1998, Service Agreement No. 21—Coral Power, LLC have been made with the Commission: Service Agreement No. 22—NorAm Energy Delmarva Power & Light Company Services, Inc. (Delmarva), tendered for filing a 1. Western Area Power Administration Service Agreement No. 23—TransCanada summary of short-term transactions [Docket No. EF98–5031–000] Power Corporation made during the second quarter of Service Agreement No. 24—AIG Trading calendar year 1998 under Delmarva’s Take notice that on August 3, 1998, Corporation Market Rate Sales Tariff, FERC Electric the Deputy Secretary of the Department Service Agreement No. 25—PanEnergy of Energy, by Rate Order No. WAPA–79, Trading and Marketing Services Tariff, Original Volume No. 14, filed by Service Agreement No. 26—Atlantic City Delmarva in Docket No. ER96-2571–000. did confirm and approve on an interim basis, to be effective on August 1, 1998, Electric Company Comment date: August 18, 1998, in the Western Area Power Service Agreement No. 27—Energy Transfer accordance with Standard Paragraph E Administration’s formula rates under Group, LLC at the end of this notice. Service Agreement No. 28—Federal Energy Rate Schedules UP-NT1, UPG-FPT1, Sales, Inc. 26. Atlantic City Electric Co. UP-NFPT1 for firm and non-firm Service Agreement No. 29—Dupont Power [Docket No. ER98–3974–000] transmission over the integrated System Marketing, Inc. of the Pick-Sloan Missouri Basin Service Agreement No. 30—Baltimore Gas & Take notice that on July 29, 1998, Program-Eastern Division (P-SMBP-ED) Electric Company Service Agreement No. 31—The Power Atlantic City Electric Company and UGP-AS1, UGP-AS2, UGP-AS3, Company of America (Atlantic), tendered for filing a summary UGP-AS4, UGP-AS5, and UGP-AS6 for Service Agreement No. 32—Plum Street of short-term transactions made during ancillary services for the P-SMBP-ED. Energy Marketing, Inc. the second quarter of calendar year 1998 The formula rates in the Rate Service Agreement No. 33—Commonwealth under Atlantic’s Marked-Based Rate Schedules UGP-NT1, UGP-FPT1, UGP- Electric Company Power Sales Tariff, FERC Electric Tariff, AS1, UGP-AS2, UGP-AS3, UGP-AS4, Service Agreement No. 34—Western Power First Revised Volume No. 1, filed by UGP-AS5, and UGP-AS6 will be in Services, Inc. Atlantic in Docket No. ER96–1361–000. Service Agreement No. 35—Sonat Power effect pending the Federal Energy Marketing LP Comment date: August 18, 1998, in Regulatory Commission’s (FERC) Service Agreement No. 36—Williams Energy accordance with Standard Paragraph E approval or of substitute formula rates Services Company at the end of this notice. on a final basis, ending July 31, 2003. 43150 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Comment date: August 28, 1998, in Declaratory Order. KCP states that as required by the Commission’s accordance with Standard Paragraph E Hawaii Public Utilities Commission January 14, 1994, order in Docket No. at the end of this notice. (HPUC) and Hawaiian Electric ER94–178–000. Company, Inc. (HECO) have taken On July 20, 1998, MidCon 2. Sunlaw Cogeneration Partners I actions that violate PURPA thereby Management Corp. filed certain [Docket No. EG98–87–000] allowing HECO’s wholly owned information as required by the On August 3, 1998, Sunlaw subsidiary, Hawaii Electric Light Commission’s August 11, 1994, order in Cogeneration Partners I (Sunlaw) filed Company, to begin construction of its Docket No. ER94–1329–000. with the Federal Energy Regulatory own facility and prevent KCP from On July 29, 1998, J.L. Walker & Commission (Commission) a building its qualifying facility. KCP Associates filed certain information as supplement to its application for requests that the Commission initiate required by the Commission’s August 7, determination of exempt wholesale enforcement proceedings or, in the 1995, order in Docket No. ER95–1261– generator status which was filed on June alternative, issue an order declaring that 000. 12, 1998, pursuant to Part 365 of the HPUC’s actions violate the On July 9, 1998, Ocean Energy Commission’s regulations. Commission’s rules under PURPA and Services, Inc. filed certain information Sunlaw states that it is a limited are therefore preempted under the as required by the Commission’s partnership organized and existing Federal Power Act. January 19, 1996, order in Docket No. under the laws of the State of California. Comment date: August 31, 1998, in ER96–588–000. Sunlaw indicates that it is engaged accordance with Standard Paragraph E On July 10, 1998, United American directly and exclusively in the business at the end of this notice. Energy, Corp. filed certain information of owning and operating all or part of 5. Duquesne Light Company Ohio as required by the Commission’s two cogeneration facilities located in the Edison Co., et al. January 3, 1997, order in Docket No. City of Vernon, California and selling ER96–3092–000. electric energy at wholesale. [Docket No. EL98–68–000] On July 6, 1998, The XEREX Group, Comment date: August 24, 1998, in Take notice that on July 31, 1998, Inc. filed certain information as required accordance with Standard Paragraph E pursuant to Sections 203(b), 205, and by the Commission’s March 19, 1998, at the end of this notice. The 206 of the Federal Power Act and Rule order in Docket No. ER98–1823–000. Commission will limit its consideration 207 of the Commission’s regulations, of comments to those that concern the Duquesne Light Company submitted for 7. Phibro Inc., Premier Enterprises, adequacy or accuracy of the application. filing a Petition for Declaratory Order, LLC, SuperSystems, Inc., Sunoco Power Amendment of Contracts, and/or Marketing, LLC, Griffin Energy 3. Safe Harbor Water Power Supplemental Remedial Order. Marketing, LLC, Bruin Energy, Inc., Corporation Duquesne request a declaration that Energy Sales Network, Inc. [Docket No. EG98–107–000] FirstEnergy Corp. may not unreasonably [Docket Nos. ER95–430–015; ER95–1123– On July 31, 1998, Safe Harbor Water withhold consent to the assignment of 009; ER96–906–007; ER97–870–006; ER97– Power Corporation (Applicant), with its Duquesne’s interest in the agreements 4168–003; ER98–538–003; and ER98–753– principal office at One Powerhouse governing the operation of generating 003 (not consolidated)] Road, Conestoga, Pennsylvania 17516, units that Duquesne jointly owns with Take notice that the following filed with the Federal Energy Regulatory FirstEnergy Corp. informational filings have been made Commission an application for Copies of the filing were served on with the Commission and are on file determination of exempt wholesale FirstEnergy Corp. and the participants and available for public inspection and generator status pursuant to Section 32 in EC97–5–000. copying in the Commission’s Public Comment date: August 31, 1998, in of the Public Utility Holding Company Reference Room: accordance with Standard Paragraph E Act of 1935 and Part 365 of the On June 25, 1998, Phibro Inc. filed at the end of this notice. Commission’s regulations. certain information as required by the Applicant states that it is and will be 6. Western Systems Power Pool, Howell Commission’s June 9, 1995, order in engaged in owning and operating the Power Systems, Inc., MidCon Docket No. ER95–430–000. hydroelectric facility located in Safe Management Corp., J.L. Walker & On June 24, 1998, Premier Harbor, Pennsylvania (the Eligible Associates, Ocean Energy Services, Inc., Enterprises, LLC filed certain Facility), with aggregate generating United American Energy Corp., XERXE information as required by the capacity of approximately 380,390 kW Group, Inc. Commission’s August 7,1995, order in Docket No. ER95–1123–000. and selling electric energy exclusively at [Docket Nos. ER91–195–032; ER94–178–015; wholesale. ER94–1329–016; ER95–1261–012; ER96– On June 22, 1998, SuperSystems, Inc. Comment date: August 24, 1998, in 588–007; ER96–3092–008; and ER98–1823– filed certain information as required by accordance with Standard Paragraph E 002 (not consolidated)] the Commission’s March 27, 1996, order at the end of this notice. The Take notice that the following in Docket No. ER96–906–000. Commission will limit its consideration informational filings have been made On July 8, 1998, Sunoco Power of comments to those that concern the with the Commission and are on file Marketing, LLC filed certain information adequacy or accuracy of the application. and available for public inspection and as required by the Commission’s April 11, 1997, order in Docket No. ER97– 4. Kawaihae Cogeneration Partners copying in the Commission’s Public Reference Room: 870–000. [Docket No. EL98–67–000] On June 29, 1998, Western Systems On July 9, 1998, Griffin Energy Take notice that on July 31, 1998, Power Pool filed certain information as Marketing, LLC filed certain information Kawaihae Cogeneration Partners (KCP) required by the Commission’s June 2, as required by the Commission’s June tendered for filing a Petition for 1992, order in Docket No. ER91–195– 29, 1997, order in Docket No. ER97– Enforcement under section 210(h) of the 000. 4168–000. Public Utility Regulatory Policies Act On June 20, 1998, Howell Power On July 8, 1998, Bruin Energy, Inc. (PURPA), or in the alternative, for Systems, Inc. filed certain information filed certain information as required by Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43151 the Commission’s July 4, 1995, order in Take notice that on July 28, 1998, 16. Virginia Electric and Power Co. Docket No. ER98–538–000. Thomas Hodgson & Sons, Inc. tendered [Docket No. ER98–3712–000] On July 8, 1998, Energy Sales for filing a Notice of Withdrawal in the Network, Inc. filed certain information above-referenced docket. Take notice that on July 31, 1998, Virginia Electric and Power Company as required by the Commission’s July 4, Comment date: August 17, 1998, in (Virginia Power) tendered for filing a 1995, order in Docket No. ER98–753– accordance with Standard Paragraph E supplemental filing that amends and 000. at the end of this notice. explains the provision of generation 8. QST Energy Trading Inc., Anker 12. PJM Interconnection, L.L.C. imbalance service to North Carolina Power Services, Inc. Electric Membership Corporation. [Docket No. ER98–3110–000] [Docket Nos. ER96–553–011; ER97–3788– Comment date: August 20, 1998, in 003] Take notice that on July 30, 1998, PJM accordance with Standard Paragraph E Interconnection, L.L.C. (PJM) tendered at the end of this notice. Take notice that the following for filing, pursuant to order issued June informational filings have been made 30, 1998, a compliance filing to amend 17. Unitil Power Corp. with the Commission and are on file its Form of Service Agreement for Firm [Docket No. ER98–3742–000] and available for Public inspection and Point-to-Point Transmission Service copying in the Commission’s Public Take notice that on July 15, 1998, (PJM Open Access Transmission Tariff, Unitil Power Corp. Company tendered Reference Room: Attachment A). On July 24, 1998, QST Energy Trading for filing its quarterly report ending June Inc. filed certain information as required The amendment provides for a 30, 1998. by the Commission’s March 16, 1996, confirmation period during which an Comment date: August 17, 1998, in order in Docket No. ER96–553–000. applicant for Short-Term Firm Point-to- accordance with Standard Paragraph E On July 24, 1998, Anker Power Point Transmission Service must at the end of this notice. confirm, following PJM’s approval of its Services Inc. filed certain information as 18. Fitchburg Gas & Electric Co. required by the Commission’s request for service, that it will September 19, 1997, order in Docket No. commence service in accordance with [Docket No. 3748–000] ER97–3788–000. its request. Take notice that on July 15, 1998, PJM requests an effective date of Fitchburg Gas & Electric Company 9. California Power Exchange August 1, 1998 for the amendment. tendered for filing its quarterly report Corporation Comment date: August 19, 1998, in ending June 30, 1998. [Docket No. ER98–2095–000] accordance with Standard Paragraph E Comment date: August 17, 1998, in Take notice that on July 30, 1998, the at the end of this notice. accordance with Standard Paragraph E at the end of this notice. California Power Exchange Corporation 13. AIE Energy, Inc. (PX) tendered for filing an index of 19. Virginia Electric and Power Co. customers for acceptance by the [Docket No. ER98–3164–000] Commission with a request for waiver of Take notice that on July 24, 1998, AIE [Docket No. ER98–3775–000] any requirements that executed Energy, Inc. tendered for filing an Take notice that on July 30, 1998, Participation Agreements contain an amendment in the above-referenced Virginia Electric and Power Company Options Addendum or, until the date of docket. (Virginia Power) tendered for filing an the submittal, July 30, 1998, a software Comment date: August 17, 1998, in executed version of the Service licensing agreement requirement. accordance with Standard Paragraph E Agreement for Non-Firm Point-to-Point The PX states that this filing has been at the end of this notice. Transmission Service with Enron Power served on all parties in the above- Marketing, Inc., which it had filed in captioned docket. 14. Rochester Gas and Electric Corp. unexecuted form on July 17, 1998. Comment date: August 19, 1998, in [Docket No. ER98–3382–000] Comment date: August 19, 1998, in accordance with Standard Paragraph E accordance with Standard Paragraph E Take notice that on July 31, 1998, at the end of this notice. at the end of this notice. Rochester Gas and Electric Corporation 10. Rochester Gas and Electric Corp. tendered for filing a revised Form of 20. Virginia Electric and Power Co. Service Agreement, originally submitted [Docket No. ER98–2510–000] [Docket No. ER98–3776–000] on June 16, 1998. Take notice that on July 30, 1998, Take notice that on July 30, 1998, A copy of the Form of Service Rochester Gas and Electric Corporation Virginia Electric and Power Company Agreement was served on the New York (Virginia Power) tendered for filing an (RG&E) tendered for filing an executed Public Service Commission. transmission service agreement between executed version of the Service RG&E and Energetix, Inc. (Energetix). Comment date: August 20, 1998, in Agreement for Firm Point-to-Point The service agreement is an executed accordance with Standard Paragraph E Transmission Service with Enron Power version of a service agreement filed on at the end of this notice. Marketing, Inc., which it had filed in June 17, 1998 in unexecuted form. 15. Central Maine Power Co. unexecuted form on July 17, 1998. A copy of the service agreement was Comment date: August 19, 1998, in [Docket No. ER98–3561–000] served on the New York Public Service accordance with Standard Paragraph E Commission and on all parties listed on Take notice that on June 29, 1998, at the end of this notice. Central Maine Power Company tendered the official service list in Docket No. 21. Cleveland Electric Co. ER98–2510–000. for filing a quarterly report for the Comment date: August 19, 1998, in period January 1, 1998 to March 31, [Docket No. ER98–3930–000] accordance with Standard Paragraph E 1998. Take notice that on July 27, 1998, at the end of this notice. Comment date: August 17, 1998, in Cleveland Electric Company tendered 11. Thomas Hodgson & Sons, Inc. accordance with Standard Paragraph E for filing a quarterly report for the [Docket No. ER98–2601–000] at the end of this notice. period April 1, 1998 to June 30, 1998. 43152 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Comment date: August 17, 1998, in 25. Entergy Power Marketing Corp. 28. The Dayton Power and Light Co. accordance with Standard Paragraph E [Docket No. ER98–3986–000] [Docket No. ER98–3991–000] at the end of this notice. Take notice that on July 30, 1998, Take notice that on July 30, 1998, The 22. Western Resources, Inc. Entergy Power Marketing Corp. (EPMC) Dayton Power and Light Company [Docket No. ER98–3975–000] tendered for filing a notice of (Dayton) tendered for filing service agreements establishing Florida Power Take notice that on July 30, 1998, termination, emergency request for waiver of notice, and alternative request and Light Company as a customer under Western Resources, Inc. (Western the terms of Dayton’s Market-Based Resources), tendered for filing an for relief concerning the Electric Power Services Agreement dated January 6, Sales Tariff. agreement between Western Resources Dayton requests an effective date of and Minnesota Power. Western 1998, between EPMC and The Power Company of America, L.P., for the one day subsequent to the date of this Resources states that the purpose of the filing for the service agreements. agreement is to permit the customers to provision of electric service to The Power Company of America, L.P. Accordingly, Dayton requests waiver of take service under Western Resources’ the Commission’s notice requirements. Comment date: August 19, 1998, in market-based power sales tariff on file Copies of the filing were served on accordance with Standard Paragraph E with the Commission. The agreement is Florida Power and Light Company and at the end of this notice. proposed to become effective July 6, the Public Utilities Commission of Ohio. 1998. 26. New England Power Company Comment date: August 19, 1998, in Copies of the filing were served upon accordance with Standard Paragraph E [Docket No. ER98–3989–000] Minnesota Power and the Kansas at the end of this notice. Corporation Commission. Take notice that on July 30, 1998, Comment date: August 19, 1998, in New England Power Company (NEP) 29. LG&E Energy Marketing Inc. accordance with Standard Paragraph E tendered for filing Service Agreements [Docket No. ER98–3992–000] at the end of this notice. between NEP and the following Take notice that on July 30, 1998, 23. British Columbia Power Exchange companies under its tariff for capacity LG&E Energy Marketing Inc., tendered and capacity related products, NEP for filing a notice of termination, [Docket No. ER98–3984–000] Electric Tariff No. 10, which was emergency request for waiver of notice, Take notice that on July 30, 1998, accepted for filing by the Commission and an alternative request for relief British Columbia Power Exchange on March 31, 1998, in Docket No. ER98– pertaining to certain agreements for the Corporation (Powerex) tendered for 1636–000 and designated FERC Electric purchase and sale at wholesale of filing a conditional notice of Tariff Original Volume No. 11: Great electric power with the City of termination concerning wholesale Bay Power Corporation, dated June 8, Springfield, Illinois City Water, Light power sales arrangements between 1998; City of Holyoke Gas and Electric and Power. Powerex and The Power Company of Department, dated June 15, 1998; Comment date: August 19, 1998, in America, L.P. If the Commission Middleborough Gas and Electric accordance with Standard Paragraph E determines that a notice of termination Department, dated June 29, 1998; and at the end of this notice. is required to be filed with respect to Burlington Electric Department, dated these arrangements, then Powerex June 15, 1998. 30. Boston Edison Co. requests that the termination of these Copies of this filing were served on [Docket No. ER98–3993–000] arrangements be given effect as of June the parties to the Service Agreement, Take notice that on July 30, 1998, 30, 1998. New Hampshire Public Utilities Boston Edison Company (Boston Comment date: August 19, 1998, in Commission, Vermont Department of Edison) tendered for filing a Standstill accordance with Standard Paragraph E Public Service, and the Massachusetts Agreement between Boston Edison and at the end of this notice. Department of Telecommunications and Montaup Electric Company (Montaup). 24. Northern States Power Company, Energy. The Standstill Agreement extends (Minnesota Company), Northern States Comment date: August 19, 1998, in through November 27, 1998, the time in Power Company (Wisconsin Company) accordance with Standard Paragraph E which Montaup may institute a legal at the end of this notice. challenge to the 1996 true-up bill under [Docket No. ER98–3985–000] Boston Edison’s FERC Rate Schedule Take notice that on July 30, 1998, 27. Rochester Gas and Electric Corp. No. 69, governing sales to Montaup from Northern States Power Company [Docket No. ER98–3990–000] the Pilgrim Nuclear Station. (Minnesota) and Northern States Power Boston Edison requests waiver of the Take notice that on July 30, 1998, Company (Wisconsin) (collectively Commission’s notice requirements to all Rochester Gas and Electric Corporation known as NSP) tendered for filing an the Standstill Agreement to become (RG&E) tendered for filing a Service Electric Service Agreement between effective August 1, 1998. Agreement between RG&E and North NSP and Entergy Services, Inc. Comment date: August 19, 1998, in American Energy (Transmission (Customer). This Electric Service accordance with Standard Paragraph E Customer) for service under RG&E’s Agreement is an enabling agreement at the end of this notice. open access transmission tariff. under which NSP may provide to 31. Public Service Company of New Customer the electric services identified RG&E requests waiver of the notice Mexico in NSP Operating Companies Electric requirements for an effective date of July Services Tariff original Volume No. 4. 1, 1998. [Docket No. ER98–3995–000] NSP requests that this Electric Service Copies of the filing were served on the Take notice that on July 30, 1998, Agreement be made effective on July 1, Transmission Customer and the New Public Service Company of New Mexico 1998. York Public Service Commission. (PNM) submitted for filing executed Comment date: August 19, 1998, in Comment date: August 19, 1998, in service agreements, for electric power accordance with Standard Paragraph E accordance with Standard Paragraph E and energy sales at negotiated rates at the end of this notice. at the end of this notice. under the terms of PNM’s Power and Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43153

Energy Sales Tariff, with Energy Comment date: August 19, 1998, in A copy of the service agreement has Transfer Group, L.L.C., (dated July 9, accordance with Standard Paragraph E been served on the New York Public 1998), Illinova Energy Partners (dated at the end of this notice. Service Commission and on the July 21, 1998), and Williams Energy Customer. 35. New York State Electric & Gas Corp. Services Company (dated July 21, 1998). Comment date: August 19, 1998, in Copies of the filing have been served [Docket No.ER98–4000–000] accordance with Standard Paragraph E on each of the customers and the New Take notice that on July 30, 1998, at the end of this notice. Mexico Public Utility Commission. New York State Electric & Gas 39. Rochester Gas and Electric Corp. Comment date: August 19, 1998, in Corporation (NYSEG), tendered for accordance with Standard Paragraph E filing an unexecuted Network Service [Docket No. ER98–4007–000] at the end of this notice. and Network Operating Agreements Take notice that on July 30, 1998, 32. Northern States Power Company between NYSEG and nine (9) New York Rochester Gas and Electric Corporation (Minnesota Company), Northern States State Municipal Electric Utilities (RG&E) tendered for filing an executed Power Company (Wisconsin Company) (Customers). These Service Agreements transmission service agreement between specify that the Customers have agreed RG&E and North American Energy Inc. [Docket No. ER98–3997–000] to the rates, terms and conditions of (Customer). Take notice that on July 30, 1998, NYSEG’s currently effective open access A copy of the service agreement has Northern States Power Company transmission tariff. been served on the New York Public (Minnesota) and Northern States Power NYSEG requests waiver of the Service Commission and on the Company (Wisconsin) (collectively Commission’s sixty-day notice Customer. known as NSP) tendered for filing a requirements and an effective date of Comment date: August 19, 1998, in Short-Term Market-Based Electric July 1, 1998 for the Service Agreements. accordance with Standard Paragraph E Service Agreement between NSP and NYSEG has served copies of the filing at the end of this notice. Electric System of the Board of on the New York State Public Service 40. Rochester Gas and Electric Corp. Municipal Utilities, Sikeston, Missouri Commission and on the Customers. (Customer). NSP requests that this Comment date: August 19, 1998, in [Docket No. ER98–4008–000] Short-Term Market-Based Electric accordance with Standard Paragraph E Take notice that on July 30, 1998, Service Agreement be made effective on at the end of this notice. Rochester Gas and Electric Corporation July 2, 1998. 36. Rochester Gas and Electric Corp. (RG&E) tendered for filing an executed Comment date: August 19, 1998, in transmission service agreement between accordance with Standard Paragraph E [Docket No. ER98–4002–000] RG&E and Northeast Energy Services, at the end of this notice. Take notice that on July 30, 1998, Inc. (Customer). A copy of the service agreement has 33. Northern States Power Company Rochester Gas and Electric Corporation been served on the New York Public (Minnesota Company), Northern States (RG&E) tendered for filing an executed Service Commission and on the Power Company (Wisconsin Company) transmission service agreement between RG&E and Select Energy, Inc. Customer. [Docket No. ER98–3998–000] A copy of the service agreement has Comment date: August 19, 1998, in Take notice that on July 30, 1998, been served on the New York Public accordance with Standard Paragraph E Northern States Power Company Service Commission and on the at the end of this notice. Customer. (Minnesota) and Northern States Power 41. Rochester Gas and Electric Corp. Company (Wisconsin) (collectively Comment date: August 19, 1998, in known as NSP) tendered for filing a accordance with Standard Paragraph E [Docket No. ER98–4009–000] Short-Term Market-Based Electric at the end of this notice. Take notice that on July 30, 1998, Service Agreement between NSP and 37. Rochester Gas and Electric Corp. Rochester Gas and Electric Corporation Entergy Services, Inc. (Customer). NSP (RG&E) tendered for filing an executed requests that this Short-Term Market- [Docket No. ER98–4003–000] transmission service agreement between Based Electric Service Agreement be Take notice that on July 30, 1998, RG&E and Northeast Energy Services, made effective on July 1, 1998. Rochester Gas and Electric Corporation Inc. (Customer). Comment date: August 19, 1998, in (RG&E) tendered for an executed A copy of the service agreement has accordance with Standard Paragraph E transmission service agreement between been served on the New York Public at the end of this notice. RG&E and Select Energy, Inc. Service Commission and on the (Customer). Customer. 34. New England Power Co. A copy of the service agreement has Comment date: August 19, 1998, in [Docket No. ER98–3999–000] been served on the New York Public accordance with Standard Paragraph E Take notice that on July 30, 1998, Service Commission and on the at the end of this notice. Customer. New England Power Company (NEP) 42. Rochester Gas and Electric Corp. tendered for filing a Service Agreement Comment date: August 19, 1998, in between NEP and the Great Bay Power accordance with Standard Paragraph E [Docket No. ER98–4010–000] Corporation, dated June 8, 1998, under at the end of this notice. Take notice that on July 30, 1998, NEP’s tariff for System Energy Sales and 38. Rochester Gas and Electric Corp. Rochester Gas and Electric Corporation Exchanges, FERC Electric Tariff Original (RG&E) tendered for filing an executed Volume No. 5. [Docket No. ER98–4006–000] transmission service agreement between Copies of this filing were served on Take notice that on July 30, 1998, RG&E and Columbia Energy Power the parties to the Service Agreement, Rochester Gas and Electric Corporation Marketing (Customer). New Hampshire Public Utilities (RG&E) tendered for an executed A copy of the service agreement has Commission, and Massachusetts transmission service agreement between been served on the New York Public Department of Telecommunications and RG&E and Ensearch Energy Service Service Commission and on the Energy. (New York) (Customer). Customer. 43154 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Comment date: August 19, 1998, in Comment date: August 20, 1998, in Comment date: August 20, 1998, in accordance with Standard Paragraph E accordance with Standard Paragraph E accordance with Standard Paragraph E at the end of this notice. at the end of this notice. at the end of this notice. 43. Rochester Gas and Electric Corp. 47. FirstEnergy System 51. Rochester Gas and Electric Corp. [Docket No. ER98–4011–000] [Docket No. ER98–4022–000] [Docket No. ER98–4026–000] Take notice that on July 30, 1998, Take notice that on July 31, 1998, Take notice that on July 31, 1998, Rochester Gas and Electric Corporation FirstEnergy System tendered for filing a Rochester Gas and Electric Corporation (RG&E) tendered for filing an executed Service Agreement to provide Non-Firm (RG&E) tendered for filing a Service transmission service agreement between Point-to-Point Transmission Service for Agreement between RG&E and RG&E and North American Energy Inc. Western Resources, the Transmission Northeast Energy Services, Inc. (Customer). Customer. Services are being provided (Transmission Customer) for service A copy of the service agreement has under the FirstEnergy System Open under RG&E’s open access transmission been served on the New York Public Access Transmission Tariff submitted tariff. Service Commission and on the for filing in Docket No. ER97–412–000. RG&E requests waiver of the Customer. The proposed effective date under this Commission’s notice requirements and Comment date: August 19, 1998, in Service Agreement is July 20, 1998. an effective date of July 1, 1998. accordance with Standard Paragraph E Comment date: August 20, 1998, in A copy of the filing was served on the at the end of this notice. accordance with Standard Paragraph E Transmission Customer and the New at the end of this notice. York Public Service Commission. 44. California Power Exchange Corp. Comment date: August 20, 1998, in 48. FirstEnergy System [Docket No. ER98–4014–000] accordance with Standard Paragraph E Take notice that on July 30, 1998, the [Docket No. ER98–4023–000] at the end of this notice. California Power Exchange Corporation Take notice that on July 31, 1998, 52. Rochester Gas and Electric Corp. (PX), pursuant to the Commission order FirstEnergy System tendered for filing a issued June 25, 1998, in Docket No. Service Agreement to provide Firm [Docket No. ER98–4027–000] ER98–2773–000, et al., tendered for Point-to-Point Transmission Service for Take notice that on July 31, 1998, filing an Index of Meter Service Western Resources, the Transmission Rochester Gas and Electric Corporation Customers for acceptance by the Customer. Services are being provided (RG&E) tendered for filing a Service Commission. under the FirstEnergy System Open Agreement between RG&E and Comment date: August 19, 1998, in Access Transmission Tariff submitted Northeast Energy Services, Inc. accordance with Standard Paragraph E for filing in Docket No. ER97–412–000. (Transmission Customer) for service at the end of this notice. The proposed effective date under this under RG&E’s open access transmission Service Agreement is July 20, 1998. tariff. 45. Washington Water Power Co. Comment date: August 20, 1998, in RG&E requests waiver of the [Docket No. ER98–4015–000] accordance with Standard Paragraph E Commission’s notice requirements and Take notice that on July 30, 1998, the at the end of this notice. an effective date of July 1, 1998. A copy of the filing was served on the Washington Water Power Company 49. Rochester Gas and Electric Corp. (WWP), an electric utility and a Transmission Customer and the New marketer of electric power, filed a notice [Docket No. ER98–4024–000] York Public Service Commission. of cancellation pursuant to 18 CFR Take notice that on July 31, 1998, Comment date: August 20, 1998, in 35.15, of power sale agreements Rochester Gas and Electric Corporation accordance with Standard Paragraph E between WWP and The Power Company (RG&E) tendered for filing an executed at the end of this notice. of America, L.P. (PCA), entered into transmission service agreement between 53. Rochester Gas and Electric Corp. between January 14 and January 27, RG&E and Energetix, Inc. (Customer). 1998 under the Western Systems Power A copy of the service agreement has [Docket No. ER98–4028–000] Pool Agreement. been served on the New York Public Take notice that on July 31, 1998, WWP has also filed a motion for Service Commission and on the Rochester Gas and Electric Corporation waiver of the 60-day advance filing Customer. (RG&E) tendered for filing a Service requirement under 18 CFR 35.15, to Comment date: August 20, 1998, in Agreement between RG&E and permit WWP to terminate service to accordance with Standard Paragraph E Columbia Energy Power Marketing PCA as of August 1, 1998. at the end of this notice. Corporation (Transmission Customer) Comment date: August 19, 1998, in for service under RG&E’s open access 50. Rochester Gas and Electric Corp. accordance with Standard Paragraph E transmission tariff. at the end of this notice. [Docket No. ER98–4025–000] RG&E requests waiver of the Commission’s notice requirements and 46. Rochester Gas and Electric Corp. Take notice that on July 31, 1998, Rochester Gas and Electric Corporation an effective date of July 1, 1998. [Docket No. ER98–4021–000] (RG&E) tendered for filing a Service A copy of the filing was served on the Take notice that on July 31, 1998, Agreement between RG&E and Transmission Customer and the New Rochester Gas and Electric Corporation Energetix, Inc. (Transmission Customer) York Public Service Commission. (RG&E) tendered for filing an executed for service under RG&E’s open access Comment date: August 20, 1998, in transmission service agreement between transmission tariff. accordance with Standard Paragraph E RG&E and Columbia Energy Power RG&E requests waiver of the at the end of this notice. Marketing (Customer). Commission’s notice requirements and 54. Rochester Gas and Electric Corp. A copy of the service agreement has an effective date of July 1, 1998. been served on the New York Public A copy of the filing was served on the [Docket No. ER98–4029–000] Service Commission and on the Transmission Customer and the New Take notice that on July 31, 1998, Customer. York Public Service Commission. Rochester Gas and Electric Corporation Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43155

(RG&E) tendered for filing a Service L.P. under the rates, terms and 61. Ohio Valley Electric Corp. Indiana- Agreement between RG&E and conditions of the Open Access Kentucky Electric Corp. Columbia Energy Power Marketing Transmission Tariff. Virginia Power [Docket No. ER98–4037–000] Corporation (Transmission Customer) requests an effective date of July 1, 1998 Take notice that on July 31, 1998, for service under RG&S’s open access for the Service Agreement. Ohio Valley Electric Corporation transmission tariff. Copies of the filing were served on (including its wholly-owned subsidiary, RG&S requests waiver of the Engage Energy US L.P., the Virginia Indiana-Kentucky Electric Corporation) Commission’s notice requirements and State Corporation Commission and the (OVEC) tendered for filing a Service an effective date of July 1, 1998. North Carolina Utilities Commission. A copy of the filing was served on the Comment date: August 20, 1998, in Agreement for Non-Firm Point-To-Point Transmission Customer and the New accordance with Standard Paragraph E Transmission Service, dated July 7, York Public Service Commission. at the end of this notice. 1998 (Service Agreement) between Comment date: August 20, 1998, in Aquila Power Corporation (Aquila 58. American Electric Power Service Power) and OVEC. OVEC proposes an accordance with Standard Paragraph E Corp. at the end of this notice. effective date of July 7, 1998, and [Docket No. ER98–4034–000] requests waiver of the Commission’s 55. Rochester Gas and Electric Corp. Take notice that on July 31, 1998, the notice requirement to allow the [Docket No. ER98–4030–000] American Electric Power Service requested effective date. The Service Agreement provides for non-firm Take notice that on July 31, 1998, Corporation (AEPSC), tendered for filing transmission service by OVEC to Aquila Rochester Gas and Electric Corporation service agreements under the Wholesale Power. (RG&E) tendered for filing a Service Market Tariff of the AEP Operating Companies (Power Sales Tariff). The In its filing, OVEC states that the rates Agreement between RG&E and North and charges included in the Service American Energy (Transmission Power Sales Tariff was accepted for filing effective October 10, 1997, and Agreement are the rates and charges set Customer) for service under RG&E’s forth in OVEC’s Open Access open access transmission tariff. has been designated AEP Operating Companies’ FERC Electric Tariff Transmission Tariff. RG&E requests waiver of the Comment date: August 20, 1998, in Commission’s notice requirements and Original Volume No. 5. AEPSC requests waiver of notice to permit the service accordance with Standard Paragraph E an effective date of July 1, 1998. at the end of this notice. A copy of the filing was served on the agreements to be made effective for Transmission Customer and the New service on July 1, 1998. 62. PECO Energy Co. A copy of the filing was served upon York Public Service Commission. the Parties and the State Utility [Docket No. ER98–4038–000] Comment date: August 20, 1998, in Regulatory Commissions of Indiana, Take notice that on July 31, 1998, accordance with Standard Paragraph E Kentucky, Michigan, Ohio, Tennessee, PECO Energy Company (PECO), filed a at the end of this notice. Virginia and West Virginia. Service Agreement dated July 22, 1998 56. Rochester Gas and Electric Comment date: August 20, 1998, in with Borough of Ephrata (EPHRATA) Corporation accordance with Standard Paragraph E under PECO’s FERC Electric Tariff at the end of this notice. Original Volume No. 1 (Tariff). The [Docket No. ER98–4031–000] Service Agreement adds EPHRATA as a 59. PJM Interconnection, L.L.C. Take notice that on July 31, 1998, customer under the Tariff. Rochester Gas and Electric Corporation [Docket No. ER98–4035–000] PECO requests an effective date of (RG&E) tendered for filing a Service Take notice that on July 31, 1998, the July 22, 1998, for the Service Agreement between RG&E and Enserch PJM Interconnection, L.L.C. (PJM), on Agreement. Energy Services (Transmission behalf of the Members of the LLC, PECO states that copies of this filing Customer) for service under RG&E’s tendered for filing membership have been supplied to EPHRATA and to open access transmission tariff. applications of Enserch Energy Services, the Pennsylvania Public Utility RG&E requests waiver of the Inc., Green Mountain Energy Resources Commission. Commission’s notice requirements and L.L.C., and Rochester Gas & Electric Comment date: August 20, 1998, in an effective date of July 1, 1998. Corporation. PJM requests an effective accordance with Standard Paragraph E A copy of the filing was served on the date on the day after the receipt of the at the end of this notice. Transmission Customer and the New filing. 63. Spark Energy Trading, L.L.C. York Public Service Commission. Comment date: August 20, 1998, in Comment date: August 20, 1998, in accordance with Standard Paragraph E [Docket No. ER98–4039–000] accordance with Standard Paragraph E at the end of this notice. Take notice that on July 31, 1998, at the end of this notice. Spark Energy Trading, L.L.C.(Spark), 60. Green Mountain Power Corp. 57. Virginia Electric and Power Co. tendered for filing with the Commission [Docket No. ER98–4036–000] a Petition for Acceptance of Initial Rate [Docket No. ER98–4033–000] Take notice that on July 31, 1998, Schedule No. 1; the granting of certain Take notice that on July 31, 1998, Green Mountain Power Corporation blanket approvals, including the Virginia Electric and Power Company (Green Mountain) tendered for filing a authority to sell electricity at market- (Virginia Power) tendered for filing a service agreement with Enserch Energy based rates; and the waiver of certain Service Agreement for Firm Point-to- Services, Inc., pursuant to Green Commission Regulations. Point Transmission Service with Engage Mountain’s FERC Electric Tariff No. 2. Spark intends to engage in wholesale Energy US L.P. under Virginia Power’s Green Mountain requests an effective electric power and energy purchases Open Access Transmission Tariff to date of July 1, 1998 for the service and sales as a marketer. Spark is not in Eligible Purchasers dated July 14, 1997. agreement. the business of generating or Under the tendered Service Agreement, Comment date: August 20, 1998, in transmitting electric power. Spark is an Virginia Power will provide firm point- accordance with Standard Paragraph E independent, Texas-based limited to-point service to Engage Energy US at the end of this notice. liability company. 43156 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Comment date: August 20, 1998, in (NMPC) tendered for filing with the (NMPC) tendered for filing with the accordance with Standard Paragraph E Federal Energy Regulatory Commission Federal Energy Regulatory Commission at the end of this notice. an unexecuted Network Integration an unexecuted Network Integration Transmission Service Agreement and an Transmission Service Agreement and an 64. DTE Energy Trading, Inc. unexecuted Network Operating unexecuted Network Operating [Docket No. ER98–4044–000 ] Agreement between NMPC and Village Agreement between NMPC and Village Take notice that on July 31, 1998, DTE of Skaneateles. The Network Integration of Holley. The Network Integration Energy Trading, Inc. tendered for filing Transmission Service Agreement and Transmission Service Agreement and a letter from the Executive Committee of Network Operating Agreement specifies Network Operating Agreement specifies the Western Systems Power Pool that Village of Skaneateles will sign on that Village of Holley will sign on to and (WSPP) indicating that DTE Energy to and will agree to the terms and will agree to the terms and conditions Trading, Inc. had completed all the conditions of NMPC=s Open Access of NMPC’s Open Access Transmission steps for pool membership. DTE Energy Transmission Tariff as filed in Docket Tariff as filed in Docket No. OA96–194– Trading Inc. requests that the No. OA96–194-000. This Tariff, filed 000. This Tariff, filed with FERC on July Commission amend the WSPP with FERC on July 9, 1996, will allow 9, 1996, will allow NMPC and Village of Agreement to include it as a member. NMPC and Village of Skaneateles to Holley to enter into scheduled DTE Energy Trading, Inc. requests an enter into scheduled transactions under transactions under which NMPC will effective date of August 1, 1998 for the which NMPC will provide network provide network integration proposed amendment. Accordingly, integration transmission service for transmission service for Village of DTE Energy Trading, Inc. requests Village of Skaneateles. Holley. waiver of the Commission’s notice NMPC requests an effective date of NMPC requests an effective date of requirements for good cause shown. July 1, 1998. NMPC has requested July 1, 1998. NMPC has requested Copies of the filing were served upon waiver of the notice requirements for waiver of the notice requirements for the WSPP Executive Committee and good cause shown. good cause shown. WSPP’s General Counsel. NMPC has served copies of the filing NMPC has served copies of the filing Comment date: August 20, 1998, in upon the New York State Public Service upon the New York State Public Service accordance with Standard Paragraph E Commission and Village of Skaneateles. Commission and Village of Holley. at the end of this notice. Comment date: August 20, 1998, in Comment date: August 20, 1998, in accordance with Standard Paragraph E accordance with Standard Paragraph E 65. Niagara Mohawk Power Corp. at the end of this notice. at the end of this notice. [Docket No. ER98–4048–000] 67. Niagara Mohawk Power Corp. 69. Niagara Mohawk Power Corp. Take notice that on July 31, 1998, Niagara Mohawk Power Corporation [Docket No. ER98–4050–000] [Docket No. ER98–4052–000] (NMPC) tendered for filing with the Take notice that on July 31, 1998, Take notice that on July 31, 1998, Federal Energy Regulatory Commission, Niagara Mohawk Power Corporation Niagara Mohawk Power Corporation an unexecuted Network Integration (NMPC) tendered for filing with the (NMPC) tendered for filing with the Transmission Service Agreement and an Federal Energy Regulatory Commission Federal Energy Regulatory Commission unexecuted Network Operating an unexecuted Network between NMPC an unexecuted Network Integration Agreement between NMPC and Village and Village of Richmondville. The Transmission Service Agreement and an of Theresa. The Network Integration Network Integration Transmission unexecuted Network Operating Transmission Service Agreement and Service Agreement and Network Agreement between NMPC and Green Network Operating Agreement specifies Operating Agreement specifies that Island Power Authority. The Network that Village of Theresa will sign on to Village of Richmondville will sign on to Integration Transmission Service and will agree to the terms and and will agree to the terms and Agreement and Network Operating conditions of NMPC’s Open Access conditions of NMPC’s Open Access Agreement specifies that Green Island Transmission Tariff as filed in Docket Transmission Tariff as filed in Docket Power Authority will sign on to and will No. OA96–194–000. This Tariff, filed No. OA96–194–000. This Tariff, filed agree to the terms and conditions of with FERC on July 9, 1996, will allow with FERC on July 9, 1996, will allow NMPC’s Open Access Transmission NMPC and Village of Theresa to enter NMPC and Village of Richmondville to Tariff as filed in Docket No. OA96–194– into scheduled transactions under enter into scheduled transactions under 000. This Tariff, filed with FERC on July which NMPC will provide network which NMPC will provide network 9, 1996, will allow NMPC and Green integration transmission service for integration transmission service for Island Authority to enter into scheduled Village of Theresa. Village of Richmondville. transactions under which NMPC will NMPC requests an effective date of NMPC requests an effective date of provide network integration July 1, 1998. NMPC has requested July 1, 1998. NMPC has requested transmission service for Green Island waiver of the notice requirements for waiver of the notice requirements for Power Authority. good cause shown. good cause shown. NMPC requests an effective date of NMPC has served copies of the filing NMPC has served copies of the filing July 1, 1998. NMPC has requested upon the New York State Public Service upon the New York State Public Service waiver of the notice requirements for Commission and Village of Theresa. Commission and Village of good cause shown. Comment date: August 20, 1998, in Richmondville. NMPC has served copies of the filing accordance with Standard Paragraph E Comment date: August 20, 1998, in upon the New York State Public Service at the end of this notice. accordance with Standard Paragraph E Commission and Green Island Power at the end of this notice. 66. Niagara Mohawk Power Authority. Niagara Mohawk Power Corporation 68. Niagara Mohawk Power Corp. Corporation Docket No. ER98–4051– 000. [Docket No. ER98–4049–000] [Docket No. ER98–4051–000] Comment date: August 20, 1998, in Take notice that on July 31, 1998, Take notice that on July 31, 1998, accordance with Standard Paragraph E Niagara Mohawk Power Corporation Nigara Mohawk Power Corporation at the end of this notice. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43157

70. Niagara Mohawk Power Corp. Comment date: August 20, 1998, in 76. Portland General Electric Co. [Docket No. ER98–4053–000] accordance with Standard Paragraph E [Docket No. ES98–41–000] at the end of this notice. Take notice that on July 31, 1998, Take notice that on July 28, 1998, Niagara Mohawk Power Corporation 73. Texas Utilities Electric Co. Portland General Electric Company (NMPC) tendered for filing with the [Docket No. ER98–4060–000] submitted an application, under Section Federal Energy regulatory Commission Take notice that, on July 31, 1998, 204 of the Federal Power Act, for an unexecuted Network Integration Texas Utilities Electric Company (TU authorization to issue short-term debt, transmission Service Agreement and an Electric), tendered for filing an executed from time to time, in an aggregate unexecuted network Operating transmission service agreement (TSA), principal amount not to exceed $250 Agreement between NMPC and Village with Merchant Energy Group of the million over a two-year period. of Mohawk. The Network Integration Americas, Inc. for certain Unplanned Comment date: August 19, 1998, in Transmission Service Agreement and Service transactions under TU Electric’s accordance with Standard Paragraph E Network Operating Agreement specifies Tariff for Transmission Service To, at the end of this notice. that Village of Mohawk will sign on to From and Over Certain HVDC and will agree to the terms and Interconnections. 77. Gary D. Cotton conditions of NMPC’s Open Access TU Electric requests an effective date [Docket No. ID–3122–000] Transmission tariff as filed in Docket for the TSA that will permit it to Take notice that on January 26, 1998, No. OA96–194–000. This Tariff, filed become effective on or before the service Gary D. Cotton (Applicant) tendered for with FERC on July 9, 1996, will allow commencement date under the TSA. filing an application under section NMPC and Village of Mohawk to enter Accordingly, TU Electric seeks waiver 305(b) of the Federal Power Act to hold into scheduled transactions under of the Commission’s notice the following positions: which NMPC will provide network requirements. Copies of the filing were integration transmission service for served on Merchant Energy Group of the Governor—California Independent Village of Mohawk. Americas, Inc. as well as the Public System Operator Corporation NMPC requests an effective date of Utility Commission of Texas. Senior Vice President-Energy Supply— July 1, 1998. NMPC has requested Comment date: August 20, 1998, in San Diego Gas & Electric Company waiver of the notice requirements for accordance with Standard Paragraph E Governor—California Power Exchange good cause shown. at the end of this notice. Corporation NMPC has served copies of the filing 74. The California Power Exchange Comment date: August 14, 1998, in upon the New York State Public Service Corp. Commission and Village of Mohawk. accordance with Standard Paragraph E Comment date: August 20, 1998, in [Docket No. ER98–4062–000] at the end of this notice. accordance with Standard Paragraph E On July 31, 1998, the California Power 78. Salt River Project Agricultural at the end of this notice. Exchange Corporation (PX), tendered for Improvement and Power District filing a PX Participation Agreement 71. Alliant Services, Inc. between the PX and the California [Docket No. NJ98–3–001] [Docket No. ER98–4054–000] Department of Water Resources in Take notice that on July 13, 1998, Salt compliance with the Commission’s May Take notice that on July 31, 1998, River Project Agricultural Improvement 19, 1998 order. California Power Exch. Alliant Services, Inc. (Alliant), on its and Power District, tendered for filing a Corp., 83 FERC 61,186 (1998). own behalf and on behalf of IES Utilities revised voluntary open access The PX states that this filing has been Inc., Interstate Power Company, and transmission tariff to comply with the served upon all parties on the official Wisconsin Power & Light Company (the Commission’s June 11, 1998 order in the service list in the above-captioned IEC Operating Companies), submitted a captioned proceeding. SRP also docket. revised System Coordination and subsequently tendered for filing, on July Comment date: August 20, 1998, in Operating Agreement in the above- 28, 1998, corrections to its revised accordance with Standard Paragraph E captioned docket. voluntary open access transmission at the end of this notice. Comment date: August 20, 1998, in tariff. accordance with Standard Paragraph E 75. American Electric Power Service Comment date: August 27, 1998, in at the end of this notice. Corp. accordance with Standard Paragraph E at the end of this notice. 72. CinCap V, LLC [Docket No. ER98–4063–000] Take notice that on July 30, 1998, the 79. Inland Power & Light Co. [Docket No. ER98–4055–000] American Electric Power Service [Docket No. OA98–16–000] On July 31, 1998, Cin Cap V,LLC Corporation (AEPSC) tendered for filing (CinCap V) submitted for approval executed service agreements under the Take notice that on July 28, 1998, CinCap V’s Rate Schedule No. 1, a Code AEP Companies’ Open Access Inland Power & Light Company (Inland) of Conduct; a request for certain blanket Transmission Service Tariff (OATT). filed a request for waiver of the approvals, including the authority to The OATT has been designated as FERC requirements of Order No. 888 and sell electricity at market-based rates; Electric Tariff Original Volume No. 4, Order No. 889 pursuant to 18 CFR and a request for waiver of certain effective July 9, 1996. AEPSC requests 35.28(d) of the Federal Energy Commission regulations. CinCap V, a waiver of the notice requirements to Regulatory Commission’s (Commission) Delaware limited liability company, is a permit the Service Agreements to be Regulations. Inland’s filing is available wholly-owned subsidiary of Cinergy made effective for service billed on and for public inspection at its offices in Capital and Trading Inc. after July 1, 1998. Spokane, Washington. CinCap requested a September 29, Comment date: August 20, 1998, in Comment date: August 28, 1998, in 1998 effective date for Rate Schedule accordance with Standard Paragraph E accordance with Standard Paragraph E No. 1. at the end of this notice. at the end of this notice. 43158 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Standard Paragraphs l. Pursuant to 18 CFR 16.9(b)(1) each license for this project must be filed by E. Any person desiring to be heard or application for a new license and any April 30, 2001. to protest said filing should file a competing license applications must be David P. Boergers, motion to intervene or protest with the filed with the Commission at least 24 Secretary. Federal Energy Regulatory Commission, months prior to the expiration of the [FR Doc. 98–21623 Filed 8–11–98; 8:45 am] 888 First Street, N.E., Washington, D.C. existing license. All applications for BILLING CODE 6717±01±M 20426, in accordance with Rules 211 license for this project must be filed by and 214 of the Commission’s Rules of December 31, 2002. Practice and Procedure (18 CFR 385.211 David P. Boergers, DEPARTMENT OF ENERGY and 18 CFR 385.214). All such motions Secretary. Western Area Power Administration or protests should be filed on or before [FR Doc. 98–21622 Filed 8–11–98; 8:45 am] the comment date. Protests will be BILLING CODE 6717±01±M Pick-Sloan Missouri Basin Program, considered by the Commission in Eastern DivisionÐRate Order No. determining the appropriate action to be WAPA±79 taken, but will not serve to make DEPARTMENT OF ENERGY protestants parties to the proceeding. AGENCY: Western Area Power Any person wishing to become a party Federal Energy Regulatory Administration, DOE. must file a motion to intervene. Copies Commission ACTION: Notice of rate order. of these filings are on file with the Commission and are available for public Notice of Intent to File Application for SUMMARY: Notice is given of the inspection. New License confirmation and approval by the David P. Boergers, Deputy Secretary of the Department of August 7, 1998. Energy (DOE) of Rate Order No. WAPA– Secretary. 79 and Rate Schedules UGP–AS1, UGP– a. Type of filing: Notice of Intent to [FR Doc. 98–21571 Filed 8–11–98; 8:45 am] AS2, UGP–AS3, UGP–AS4, UGP–AS5, File Application for New License. BILLING CODE 6717±01±P UGP–AS6, UGP–FPT1, UGP–NFPT1, b. Project No.: P–2782. and UGP–NT1 placing formula rates into effect on an interim basis for firm DEPARTMENT OF ENERGY c. Date filed: May 26, 1998. d. Submitted By: Parowan City and non-firm transmission on the Federal Energy Regulatory Corporation, current license. Integrated System (IS) and ancillary Commission services in Western Area Power e. Name of Project: Red Creek. Administration’s (Western) Watertown Notice of Intent to File Application for f. Location: On Red Creek and South control area. New License Fork in Iron County, Utah. The charges for the transmission and ancillary services will be implemented g. Filed Pursuant to: Section 15 of the August 7, 1998. on August 1, 1998. Subsequent annual Federal Power Act, 18 CFR 16.6 of the a. Type of filing: Notice of Intent to recalculation will be based on updated Commission’s requirements. File Application for New License. financial data and loads. Network b. Project No.: P–1273. h. Expiration date of original license: Transmission Service charges will be c. Date filed: May 26, 1998. April 30, 2003. based on the Transmission Customer’s d. Submitted By: Parowan City i. The project consists of: (1) the 8- load-ratio share of the annual revenue Corporation, current licensee. foot-high, 29-foot-long South Fork requirement for transmission. Point-to- e. Name of Project: Center Creek. Point Transmission Service will be f. Location: On Center Creek in Iron Diversion Dam and reservoir; (2) the 8- based on reserved capacity on the County, Utah. foot-high, 48-foot-long Red Creek Transmission System. The charges for g. Filed Pursuant to: Section 15 of the Diversion Dam and reservoir; (3) the 10- ancillary services will be based on the Federal Power Act, 18 CFR 16.6 of the inch-diameter, 4,263-foot-long South cost of resources used to provide these Commission’s regulations. Fork steel pipeline; the 18-inch- h. Expiration date of original license: diameter, 16,098-foot-long steel Red services. December 20, 1004. Creek pipeline; (4) a pumphouse with FOR FURTHER INFORMATION CONTACT: Mr. i. The project consists of: (1) a 20-foot- two electric pumps delivering water Robert F. Riehl, Rates Manager, Upper high, 54-foot-long concrete gravity dam; from the South Fork pipeline into the Great Plains Customer Service Region, (2) a 25-foot-high, 980-foot-long earthfill Red Creek pipeline; (5) a powerhouse Western Area Power Administration, embankment impounding; (3) a storage with an installed capacity of 500 P.O. Box 35800, Billings, MT 59107– pond with storage capacity of 21 acre- kilowatts; and (6) other appurtenances. 5800, (406) 247–7388, or e-mail ([email protected]). feet; (4) a 26-inch-diameter pipe from j. Pursuant to 18 CRF 16.7, the concrete dam to the pond; (5) a information on the project is available SUPPLEMENTARY INFORMATION: By 19,300-foot-long steel penstock; (6) a at: The City of Parowan, 5 South Main, Amendment No. 3 to Delegation Order powerhouse with an installed capacity Parowan, UT 84761, Phone: (435) 477– No. 0204–108, published November 10, of 600 kilowatts; (7) a 20,992-foot-long, 3331. 1993 (58 FR 59716), the Secretary of 12.47-kilovolt transmission line; and (8) Energy (Secretary) delegated (1) the ´ other appurtenances. k. FERC contact: Hector M. Perez authority to develop long-term power j. Pursuant to 18 CFR 16.7, (202) 219–2843. and transmission rates on a non- information on the project is available l. Pursuant to 18 CFR 16.9(b)(1) each exclusive basis to the Administrator of at: The City of Parowan, 5 South Main, application for a new license and any Western; (2) the authority to confirm, Parowan, UT 84761, Phone: (435) 477– competing license applications must be approve, and place such rates into effect 3331. filed with the Commission at least 24 on an interim basis to the Deputy k. FERC contact: Hector M. Pe´rez months prior to the expiration of the Secretary; and (3) the authority to (202) 219–2843. existing license. All applications for confirm, approve, and place into effect Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43159 on a final basis, to remand, or to transmission rates were established in on an interim basis to the Deputy disapprove such rates to the Federal accordance with 10 CFR part 903, 18 Secretary; and (3) the authority to Energy Regulatory Commission (FERC). CFR part 300 and the Delegation Order, confirm, approve, and place into effect Rate Order No. WAPA–79, if the rates submitted by Western are on a final basis, to remand, or to confirming, approving, and placing the found to violate the statutory standards, disapprove such rates to the Federal IS Network, Firm Point-to-Point, and they must be remanded to the Energy Regulatory Commission (FERC). Non-Firm Point-to-Point Transmission, Administrator for further proceedings. Existing Department of Energy (DOE) and the new ancillary services formula The new Rate Schedules UGP–AS1, procedures for public participation in rates into effect on an interim basis, is UGP–AS2, UGP–AS3, UGP–AS4, UGP– power rate adjustments are found in 10 issued. These transmission and AS5, UGP–AS6, UGP–FPT1, UGP– CFR part 903. Procedures for approving ancillary service formula rates are NFPT1, and UGP–NT1 will be promptly Power Marketing Administration rates established pursuant to section 302 of submitted to the FERC for confirmation by the FERC are found in 18 CFR part DOE Organization Act, 42 U.S.C. and approval on a final basis. 300. In addition to seeking final 7152(a), through which the power Dated: July 31, 1998. confirmation under the Delegation marketing functions of the Secretary of Order, Western requests the FERC the Interior and the Bureau of Elizabeth A. Moler, Deputy Secretary. review the proposed transmission rates Reclamation were transferred to, and for the Upper Great Plains Region vested in, the Secretary. Rate Order No. Order Confirming, Approving, and (UGPR) for consistency with the WAPA–79 was prepared pursuant to Placing the Pick-Sloan Missouri Basin standards of section 212 (a) of the Delegation Order No. 0204–108 Program, Eastern Division Federal Power Act (FPA), 16 U.S.C. (Delegation Order), existing DOE Transmission and Ancillary Service 824k (a). In doing so, Western asks the procedures for public participation in Formula Rates Into Effect on an Interim FERC to determine that its rates are power rate adjustments in 10 CFR part Basis comparable to what it charges other 903, and procedures for approving customers and conform to the standards Power Marketing Administration rates August 1, 1998. under the Delegation Order in a manner by the FERC in 18 CFR part 300. In These transmission and ancillary similar to the FERC’s finding in United addition to seeking final confirmation service formula rates are established States Department of Energy-Bonneville under the Delegation Order, Western pursuant to the Department of Energy Power Administration, 80 FERC ¶ requests the FERC review the proposed Organization Act (42 U.S.C. 7101 et 61,118 (1997). transmission rates for the Upper Great seq.), through which the power Plains Region (UGPR) for consistency marketing functions of the Secretary of Western has separately filed for with the standards of section 212 (a) of the Interior and the Bureau of approval of generally applicable terms the Federal Power Act 16 U.S.C. 824k Reclamation (Reclamation) under the and conditions under its Open Access (a). In doing so, Western asks the FERC Reclamation Act of 1902 (43 U.S.C. 371 Transmission Tariff (Tariff) in Docket to determine that its rates are et seq.), as amended and supplemented No. NJ98–1–000. These rate schedules comparable to what it charges other by subsequent enactments, particularly will be utilized under the Tariff for customers and conform to the standards section 9(c) of the Reclamation Project service in the UGPR of Western, and under the Delegation Order in a manner Act of 1939 (43 U.S.C. 485h(c)), and they are potentially subject to FERC similar to the FERC’s finding in United other acts specifically applicable to the review under the standards of 16 U.S.C. States Department of Energy-Bonneville project involved, were transferred to 824k(a). Because Western’s transmission Power Administration, 80 FERC ¶ and vested in the Secretary of Energy rates were established in accordance 61,118 (1997). (Secretary). with 10 CFR part 903, 18 CFR part 300 Western has separately filed for By Amendment No. 3 to Delegation and the Delegation Order, if the rates approval of generally applicable terms Order No. 0204–108 (Delegation Order), submitted by Western are found to and conditions under its Open Access published November 10, 1993 (58 FR violate the statutory standards, they Transmission Tariff (Tariff) in Docket 59716), the Secretary delegated: (1) the must be remanded to the Administrator No. NJ98–1–000. These rate schedules authority to develop long-term power for further proceedings. will be utilized under the Tariff for and transmission rates on a non- Acronyms/Terms and Definitions service in the UGPR of Western, and exclusive basis to the Administrator of they are potentially subject to FERC the Western Area Power Administration As used in this rate order, the review under the standards of 16 U.S.C. (Western); (2) the authority to confirm, following acronyms/terms and 824k (a). Because Western’s approve, and place such rates into effect definitions apply:

Acronym/Term Definition

$/kW-month ...... Monthly charge for capacity (i.e., $ per kilowatt (kW) per month). 12-cp ...... 12-month coincident peak average. Ancillary Services ...... Those services that are necessary to support the transmission of capacity and energy from re- sources to loads while maintaining reliable operation of the Transmission System in accord- ance with good utility practice. A&GE ...... Administrative and general expense. Basin Electric ...... Basin Electric Power Cooperative. Control Area ...... An electric system or systems, bounded by interconnection metering and telemetry, capable of controlling generation to maintain its interchange schedule with other Control Areas and contributing to frequency regulation of the Interconnection. Corps of Engineers ...... U.S. Army Corps of Engineers. DOE ...... U.S. Department of Energy. DOE Order RA 6120.2 ...... An order addressing power marketing administration financial reporting, used in determining revenue requirements for rate development. 43160 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Acronym/Term Definition

Emergency Energy ...... Electric energy purchased by an electric utility whenever an event on the system causes insuf- ficient operating capability to cover its own demand requirement. Energy Imbalance Service ...... A service which provides energy correction for any hourly mismatch between a Transmission Customer's energy supply and the demand served. Federal Customers ...... Western and Bureau of Reclamation customers taking delivery of long-term firm service under Firm Electric Service Contracts, and Project Use Power Customers. FERC ...... Federal Energy Regulatory Commission. FERC Order No. 888 ...... FERC Order Nos. 888, 888±A, 888±B, and 888±C unless otherwise noted. Firm Electric Service Contract ...... Contracts for the sale of long-term firm energy and capacity to Federal Customers, with con- tract rates of delivery based on an allocation of power from the Federal generation resource. Firm Point-to-Point Transmission Service ...... Transmission service that is reserved and/or scheduled between Points of Receipt and Deliv- ery. Heartland ...... Heartland Consumers Power District. IS ...... Integrated System. ISO ...... Independent System Operator. JTS ...... Joint Transmission System. kW ...... Kilowatt; 1,000 watts. kWh ...... Kilowatt-hour; the common unit of electric energy, equal to one kW taken for a period of 1 hour. kW-month ...... Unit of electric capacity, equal to the maximum of kW taken during 1 month. Load ...... A customer or an end-use device that receives power from the Transmission System. LRS ...... Laramie River Station is a coal-fired generation plant near Laramie, Wyoming. LRS is a part of the Missouri Basin Power Project (MBPP). Load-ratio share ...... Ratio of the Network Transmission Customer's coincident hourly load (including its designated network load not physically interconnected with the Transmission Provider) to the Trans- mission Provider's monthly Transmission System peak, calculated on a rolling 12-month basis. Long-Term Firm Point-to-Point Transmission Firm Point-to-Point Transmission Service reservation with at least 12 consecutive equal Service. monthly amounts. MAPP ...... Mid-Continent Area Power Pool. mill ...... Unit of monetary value equal to .001 of a U.S. dollar; i.e., 1/10th of a cent. mills/kWh ...... Mills per kilowatt-hour. MBMPA ...... Missouri Basin Municipal Power Agency. MBSG ...... Missouri Basin Systems Group. MVAR ...... Megavar, equal to 1,000,000 VARs MW ...... Megawatt; equal to 1,000 kW or 1,000,000 watts. NEPA ...... National Environmental Policy Act of 1969. NERC ...... North American Electric Reliability Council. Network Customer ...... An entity receiving transmission service pursuant to the terms of the Transmission Provider's Network Integration Transmission Service of the Tariff. Non-Firm Point-to-Point ...... Point-to-Point Transmission Service under the Tariff that is reserved and scheduled on an as- available basis and is subject to interruption for economic reasons. O&M ...... Operation and maintenance expense. P±SMBP ...... Pick-Sloan Missouri Basin Program. P±SMBP±ED ...... Pick-Sloan Missouri Basin Program-Eastern Division. Point-to-Point Transmission Service ...... The reservation and transmission of capacity and energy on either a firm or a non-firm basis from designated Point(s) of Receipt to designated Point(s) of Delivery. Provisional Rate Schedule ...... A Rate Schedule which has been confirmed, approved, and placed in effect on an interim basis by the Deputy Secretary of DOE. Reclamation ...... Bureau of Reclamation, U.S. Department of the Interior. Reactive Supply and Voltage Control From A service which provides reactive supply through changes to generator reactive output to Generating Sources Service. maintain transmission line voltage and facilitate electricity transfers. Regulation and Frequency Response Service ... A service which provides for following the moment-to-moment variations in the demand or supply in a Control Area and maintaining scheduled interconnection frequency. Reserve Services ...... Spinning Reserve Service and Supplemental Reserve Service. Schedule ...... An agreed-upon transaction size (megawatts), beginning and ending ramp times and rate, and type of service required for delivery and receipt of power between the contracting parties and the Control Area(s) involved in the transaction. Scheduling, System Control, and Dispatch A service which provides for (a) scheduling, (b) confirming and implementing an interchange Service. schedule with other control areas, including intermediary control areas providing trans- mission service, and (c) ensuring operational security during the interchange transaction. Service Agreement ...... The initial agreement and any amendments or supplements thereto entered into by the Trans- mission Customer and Western for service under the Tariff. Short-Term Firm Point-to-Point Transmission Firm Point-to-Point Transmission Service with service of less duration than 1 year. Service. Spinning Reserve Service ...... Generation capacity needed to serve load immediately in the event of a system contingency. Spinning Reserve Service may be provided by generating units that are on-line and loaded at less than maximum output. The Transmission Provider must offer this service when the transmission service is used to serve load within its Control Area. The Transmission Cus- tomer must either purchase this service from the Transmission Provider or make alternative comparable arrangements to satisfy its Spinning Reserve Service obligation. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43161

Acronym/Term Definition

Supplemental Reserve Service ...... Generation capacity needed to serve load in the event of a system contingency; however, it is not available immediately to serve load but rather within a short period of time. Supple- mental Reserve Service may be provided by generating units that are on-line but unloaded, by quick start generation or by interruptible load. The Transmission Provider must offer this service when the transmission service is used to serve load within its Control Area. The Transmission Customer must either purchase this service from the Transmission Provider or make alternative comparable arrangements to satisfy its Supplemental Reserve Service obli- gation. Supporting Documentation ...... Work papers which support the rate. System ...... An interconnected combination of generation, transmission and/or distribution components comprising an electric utility, independent power producers(s) (IPP), or group of utilities and IPP(s). Tariff ...... Western Area Power Administration Open Access Transmission Service Tariff, Docket No. NJ98±1±000. Transmission Customer ...... Any eligible customer (or its designated agent) that receives transmission service under the Tariff. Transmission Provider ...... Any utility that owns, operates, or controls facilities used for the transmission of electric energy in interstate commerce. UGPR, as operator of the IS, is the Transmission Provider for the purposes of this Federal Register notice. Transmission System ...... The facilities owned, controlled, or operated by the Transmission Provider that are used to provide transmission service. Transmission System Total Load ...... 12-cp system peak for Network Transmission Service plus reserved capacity for all Firm Point- to-Point Transmission Service. UGPR ...... This is the Upper Great Plains Customer Service Region of the Western Area Power Adminis- tration. Some places herein, UGPR maybe referenced generically as Western. VAR ...... A unit of reactive power. WAUGP ...... The NERC acronym for the Western Area Upper Great Plains control area. This control area is also known as the Watertown Control Area. Watertown Operations Office ...... Western Area Power Administration, Upper Great Plains Customer Service Region, Oper- ations Office, 1330 41st Street SE, Watertown, South Dakota 57201. Western ...... This is the Western Area Power Administration, U.S. Department of Energy. Some places herein, Western is represented by the Upper Great Plains Customer Service Region (UGPR).

Effective Date The following summarizes the steps the rate adjustment in greater detail and The Provisional Formula Rates will Western took to ensure involvement of answered questions. become effective on the first day of the interested parties in the rate process: 5. UGPR held comment forums on first full billing period beginning on or 1. On March 28, 1997, UGPR November 13, 1997, in Billings, after August 1, 1998, and will be in distributed an Advance Announcement Montana, and November 14, 1997, in effect pending the FERC’s approval of of Transmission Rate Adjustment to all Sioux Falls, South Dakota, to provide them or substitute formula rates on a UGPR customers and interested parties. the public an opportunity to comment final basis through July 31, 2003, or UGPR gathered comments and for the record. Representatives from until superseded. These formula rates suggestions on the advance seven organizations made comments at will be applied under Western Area announcement through May 2, 1997. these forums. Power Administration Open Access 2. UGPR published a Federal Register 6. Fifty comment letters were Transmission Service Tariff (Tariff), notice on September 15, 1997 (62 FR submitted during the 90-day Docket No. NJ98–1–000, and conform 48272), officially announcing the consultation and comment period. The with the spirit and intent of the FERC proposed open access transmission and consultation and comment period ended Order No. 888. These rates are ancillary service rates adjustment, on December 15, 1997. All comments implemented pursuant to Schedules 1 initiating the public consultation and have been considered in the preparation through 8 and Attachment H of the comment period, announcing the public of this Rate Order. Tariff. information and public comment forums, and outlining procedures for Comments Public Notice and Comment public participation. Representatives of the following The Procedures for Public 3. On September 23, 1997, UGPR organizations made oral comments: Participation in Power and mailed a copy of the ‘‘Upper Great Basin Electric Power Cooperative, Transmission Rate Adjustments and Plains Region Proposed Open Access Bismarck, North Dakota Extensions, 10 CFR part 903, have been Transmission and Ancillary Service followed by Western in the Rates’’ brochure to all UGPR City of Sioux Center, Iowa development of these formula rates and Transmission Customers and other Minnesota Corn Processors, Marshall, schedules. The Provisional Rates are for interested parties. Comments received Minnesota new services. Therefore, they represent on the advance announcement were Missouri Basin Municipal Power a major rate adjustment as defined at 10 addressed in this brochure. Agency, Sioux Falls, South Dakota CFR 903.2(e) and 903.2(f)(1). The 4. UGPR held public information City of Marshall, Minnesota distinction between a minor and a major forums on October 16, 1997, in Billings, Northwestern Public Service Company, rate adjustment is used only to Montana, and October 17, 1997, in Huron, South Dakota determine the public procedures for the Sioux Falls, South Dakota. Western Heartland Consumers Power District, rate adjustment. representatives explained the need for Madison, South Dakota 43162 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

The following individuals and Northwest Iowa Power Cooperative, Le SMBP–ED. This marketing area includes organizations submitted written Mars, Iowa Montana, east of the Continental Divide, comments: Turner-Hutchinson Electric all of North Dakota and South Dakota, Jon Christensen, Member of Congress, Cooperative, Inc., Marion, South eastern Nebraska, western Iowa, and 2nd District Nebraska Dakota western Minnesota. Missouri Basin Municipal Power Oliver-Mercer Electric Cooperative, Inc., History of Transmission System Agency, Sioux Falls, South Dakota Hazen, North Dakota Doug Bereuter, Member of Congress, 1st Northern Electric Cooperative, Inc., Prior to 1959, Reclamation provided District, Nebraska Bath, South Dakota the total power supply needs to Bill Barrett, Member of Congress, 3rd Minnkota Power Cooperative, Inc., preference customers in the P–SMBP– District, Nebraska Grand Forks, North Dakota ED marketing area. Reclamation Basin Electric Power Cooperative, Lincoln Electric System, Lincoln, constructed a Federal transmission Bismarck, North Dakota Nebraska system to supply power to those State of South Dakota, Pierre, South Lincoln-Union Electric Company, preference customers. In 1959, Dakota Alcester, South Dakota Reclamation notified the preference Minnesota Valley Cooperative, Western Iowa Power Cooperative, customers that it could no longer meet Montevideo, Minnesota Denison, Iowa the total projected power needs past the Verendrye Electric Cooperative, Inc., Central Montana Electric Power year 1964 and urged these entities to Velva, North Dakota Cooperative, Billings, Montana make their own arrangements for Douglas Electric Cooperative, Inc., Northern States Power Company, supplemental power supply. Armour, South Dakota Minneapolis, Minnesota Reclamation and certain supplemental Charles Mix Electric Association, Inc., Northwestern Public Service Company, power suppliers agreed to construct Lake Andes, South Dakota by Law Offices of Wright & Talisman, future transmission facilities within the Lake Region Electric, Webster, South P.C., Washington, DC region using a single system, joint Dakota Nebraska Public Power District, York, planning concept. Union County Electric Cooperative, Inc., Nebraska In 1963, the Joint Transmission Elk Point, South Dakota Heartland Consumers Power District, System (JTS) was created when Bon Homme Yankton Electric comments submitted by Sutherland, Reclamation and Basin Electric Power Association, Inc., Tabor, South Dakota Asbill & Brennan, LLP, Washington, Cooperative (Basin Electric) entered into East River Electric Power Cooperative, DC the Missouri Basin Systems Group Madison, South Dakota Mid-West Electric Consumers (MBSG) Pooling Agreement Whetstone Valley Electric Cooperative, Association, Denver, Colorado (Agreement). In 1977, Western was Inc., Milbank, South Dakota Pick-Sloan Missouri Basin Program- established and assumed the responsibility for the Reclamation- Renville Sibley Cooperative Power Eastern Division Project Description Association, Danube, Minnesota owned Federal transmission system and Codington-Clark Electric Cooperative, The initial stages of the Missouri existing contracts. Heartland Consumers Inc., Watertown, South Dakota River Basin Project were authorized by Power District (Heartland) and Missouri Traverse Electric Cooperative, Inc., section 9 of the Flood Control Act of Basin Municipal Power Agency Wheaton, Minnesota 1944 (58 Stat. 887, 891, Pub. L. No. 78– (MBMPA) were organized in the mid- Intercounty Electric Association, Inc., 534). It was later renamed the Pick- 1970’s and subsequently signed the Mitchell, South Dakota Sloan Missouri Basin Program (P– MBSG Agreement. Basin Electric, H–D Electric Cooperative, Inc., Clear SMBP). The P–SMBP is a Heartland, and MBMPA all supply Lake, South Dakota comprehensive program, with the supplemental power to certain Dakota Energy Cooperative, Inc., Huron, following authorized functions: flood preference customers and are commonly South Dakota control, navigation improvement, referred to as supplemental power FEM Electric Association, Inc., Ipswich, irrigation, municipal and industrial suppliers. The MBSG Agreement South Dakota water development, and hydroelectric provided for joint planning and Tri County Electric Association, Inc., production for the entire Missouri River operation of some, but not all, of the Plankinton, South Dakota Basin. Multipurpose projects have been transmission facilities for the JTS Sioux Valley Southwestern Electric, developed on the Missouri River and its participants. Since then, the JTS Colman, South Dakota tributaries in Colorado, Montana, participants have augmented the McCook Electric Cooperative, Salem, Nebraska, North Dakota, South Dakota, existing Federal transmission system, South Dakota and Wyoming. using a single system, joint planning Kingsbury Electric Cooperative, Inc., De UGPR markets significant quantities concept, rather than build separate Smet, South Dakota of Federally generated hydroelectric transmission systems themselves. Fort Peck Tribes, Poplar, Montana power from the Pick-Sloan Missouri Specific JTS rights and obligations are Lyon-Lincoln Electric Cooperative, Inc., Basin Program-Eastern Division (P– detailed in bilateral agreements between Tyler, Minnesota. SMBP–ED). Western owns and operates Western and the participants. Central Power Electric Cooperative, an extensive system of high-voltage The MBSG Agreement also provides a Minot, North Dakota transmission facilities which UGPR uses mechanism for sharing the cost of the City of Elk Point, South Dakota to market approximately 2,400 MW of transmission facilities that considers the Cooperative Power, Eden Prairie, capacity from Federal projects within participants’ ownership of the Minnesota the Missouri River Basin. This capacity transmission facilities that comprise the Oahe Electric Cooperative, Inc., Blunt, is generated by eight powerplants JTS. The JTS cost-sharing method is South Dakota located in Montana, North Dakota, and based upon the concept that the original Powder River Energy Corporation, South Dakota. UGPR utilizes the facilities were capable of delivering the Sundance, Wyoming transmission facilities of Western and Federal generation to load plus Nishnabotna Valley Rural Electric others to market this power and energy approximately 200 MW, per studies Cooperative, Harlan, Iowa to customers located within the P– performed in the 1963 timeframe. Basin Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43163

Electric’s Leland Olds No. 1 generator Access Same-Time Information System The IS Transmission Rates include the was the first generation added and was available transmission capacity, bill for cost of Scheduling, System Control, and 210 MW. service, collect payments, distribute Dispatch Service, therefore an The next generation addition did not revenue to each participant, etc. The IS additional charge for this ancillary occur until after 1969. Studies for each consists of the transmission facilities service is not required for transmission increment of generation thereafter owned by Basin Electric and Heartland users. demonstrated a need for transmission east of the East-West electrical Western, Basin Electric, and additions. Western had sufficient separation in the United States, the Heartland will take IS Transmission capacity in its original system to serve transmission facilities owned by Service. Transmission Service to its own load, and since neither its Western in the P–SMBP–ED, and the UGPR’s Federal customers will continue generation nor its load was increasing, Miles City DC Tie owned by Western to be bundled in their Firm Electric did not need the additional facilities to and Basin Electric. These facilities Service rate under existing contracts deliver to its loads. Therefore, it was interconnect with utilities in the states which expire in 2020. agreed Western would not share in the of Montana, North Dakota, South UGPR prepared a cost of service study cost of additional facilities provided by Dakota, Nebraska, Iowa, Minnesota, and to develop the formula rates for the IS. others. However, Western would share Missouri and in addition include UGPR is seeking approval of formula in the revenues generated by the system facilities which interconnect with rates for calculation of Point-to-Point IS to the extent Western provided facilities Canada. Transmission Rates, the Network IS and incurred investment costs after The approach for formation of the IS Transmission Service revenue 1969. The post-1969 additions are the was to include facilities which followed requirement, and ancillary service rates. basis for the cost-sharing ratios. the spirit and intent of the FERC Order UGPR is requesting the FERC to confirm The JTS cost-sharing method is as No. 888 and to make the system most that these rates are not unjust, follows. Costs for the JTS are summed useful to all transmission requesters. unreasonable, unduly discriminatory, or for Western, Basin Electric, Heartland, The ‘‘seven factor test’’ defined in the preferential. The rates will be and MBMPA to arrive at a total FERC Order No. 888 was used to recalculated every year, effective May 1, transmission system cost. The total determine the distribution facilities that based on the approved formula rates transmission system cost for the year is were excluded from the IS Transmission and updated financial and load data. divided by the generation input for the System. Several major facilities which UGPR will provide customers notice of year (4,127,000 kW for 1997) to were not a part of the JTS have been changes in rates no later than April 1 of determine the JTS cost per kW-year of included in the IS. The second 345-kV each year. generation input. The JTS participants, transmission line between the Antelope Ancillary Services except Western, then pay into the JTS Valley and Leland Olds generating according to their generation input. stations, which meets the standards for UGPR will offer to all customers the These JTS revenues are then distributed acceptable transmission facilities set in six ancillary services defined by the back to the participants, including the FERC rulings on filings by other FERC. The six ancillary services are: (1) Western, based upon the ratio of costs transmission entities, has been Scheduling, System Control, and associated with contributed facilities included. The 230-kV transmission line Dispatch Service; (2) Reactive Supply constructed since 1969. between Tioga, North Dakota, and and Voltage Control from Generation Boundary Dam, which provides access Sources Service; (3) Regulation and Integrated System Description to generation and loads in Canada, has Frequency Response Service; (4) Energy Utilizing the single system, joint been included in the IS. The IS also Imbalance Service; (5) Spinning planning concept created by MBSG, the includes the Miles City DC Tie, which Reserves Service; and (6) Supplemental UGPR, Basin Electric, and Heartland opens the markets between the East- Reserves Service. The open access combined their transmission facilities to West electrical separation of the United ancillary service formula rates are form the Integrated System (IS) and States and increases access to other designed to recover only the costs herein develop transmission and utilities. The IS differs from the JTS in incurred for providing the service(s). ancillary service rates for transmission that it does not include the Laramie The charges for ancillary services are over the IS. This action is necessary River Station (LRS) transmission based on the cost of resources used to because UGPR, Basin Electric and facilities. These facilities were not provide these services. Heartland, whose facilities are fully considered for inclusion in the IS since Existing and Provisional Rates integrated, did not have rates suitable agreement of all the Missouri Basin for long-term open access Transmission Power Project (MBPP) participants The following is a comparison of Service. The transmission facilities would be required. existing rates, and the Provisional Rates included in the IS are transmission using 1997 data. These rates will be IS Transmission Service lines, substations, communication updated annually based on the equipment, and facilities related to UGPR will offer Network Integration approved formula rates. This is the first operation, maintenance, and support of (Network), Firm Point-to-Point and Non- transmission rate filing made by the P- the Transmission System. UGPR has Firm Point-to-Point (Point-to-Point) SMBP-ED. Prior to this, transmission been designated as the operator of the Transmission Service on the IS. The services were provided through bilateral other participants’ transmission service offered is the transmission of contract arrangements, therefore there is facilities and as such will contract for energy and capacity from Points of not an existing rate schedule for service, determine and post on the Open Receipt to Points of Delivery on the IS. comparison. 43164 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

COMPARISON OF EXISTING AND PROVISIONAL FORMULA RATES

Existing rate Class of service schedule Rate schedule August 1, 1998 and rate

Network Transmission ...... N/A UGP±NT1, Load-ratio share of 1/12 of the Annual Revenue Requirement for IS Transmission Service of $95,725,420. Firm Point-to-Point Transmission ...... N/A UGP±FPT1, Maximum of $2.87/kW-month. Non-Firm Point-to-Point Transmission ...... N/A UGP±NFPT1, Maximum of 3.93 mills/kWh. Scheduling, System Control, and Dispatch ...... N/A UGP±AS1, $46.06 per schedule per day for non-transmission cus- tomers. Reactive Supply and Voltage Control from Generation N/A UGP±AS2 $0.07/kW-month. Sources. Regulation and Frequency Response ...... N/A UGP±AS3, $0.05/kW-month. Energy Imbalance ...... N/A UGP±AS4, For negative excursions outside of 3 percent bandwidth UGPR reserves the right to charge 100 mills/kWh. Positive excursions outside the bandwidth will be lost to the system. Spinning/Supplemental Reserves ...... N/A UGP±AS5 and 6, $0.12/kW-month of customer load.

Certification of Rates and maintenance (O&M), administrative Transmission Service (Network and Western’s Administrator has certified and general expense (A&GE), Point-to-Point) are based on a revenue the transmission and ancillary service depreciation, and the cost of capital. requirement that recovers the annual costs of Western, Basin Electric, and rates placed into effect on an interim These components are displayed as Heartland associated with providing IS basis herein are the lowest possible fixed charge rates or percentages of net Transmission Service plus any facility consistent with sound business investment. These fixed charge rates are credits paid to Transmission Customers. principles. The formula rates have been then summed to arrive at a total fixed The revenue requirement for IS developed in accordance with agency charge rate associated with the Transmission Service includes the cost administrative policies and applicable particular service for which a rate is for Scheduling, System Control, and laws. being calculated. The fixed charge rate calculation for the various transmission Dispatch Service needed to provide IS Transmission Service Discussion and ancillary services can be transmission service, therefore an additional charge for this ancillary The formula rates for Network and summarized with the following formula: service is not required for transmission Point-to-Point Transmission Service + O&M ÷ Net investment ÷ users. The annual transmission costs are will be implemented August 1, 1998. + A&GE Net investment ÷ offset by appropriate transmission The rates will be recalculated annually + Depreciation expense Net revenue credits to avoid over recovery based on updated financial and load investment ÷ of costs. The Annual Revenue data. Network service charges will be + Annual interest expense Unpaid Requirement for IS Transmission based on the Transmission Customer’s investment balance = Total fixed charge rate. Service can be summarized with the load-ratio share of the annual revenue following formula: requirement for transmission. Firm To arrive at the annual cost of providing transmission service or one of Annual IS transmission costs of Point-to-Point service will be based on UGPR, Basin Electric, and Heartland reserved capacity on the Transmission the ancillary services, the total fixed System. charged rate is applied to the net + Transmission Customer facility credits ¥ Transmission revenue credits IS Transmission System Total Load: investment allocated to the service as follows: = Annual Revenue Requirement for IS The IS Transmission System Total Load × Transmission Service. is the 12-cp system peak for Network Total fixed charge rate Net Using 1997 data, the Annual Revenue Transmission Service plus the reserved investment = Annual cost of providing Requirement for IS Transmission capacity for all Long-Term Firm Point- service. The source for UGPR’s annual O&M, Service is: to-Point Transmission Service. A&GE, depreciation expense, interest The IS Transmission System Total $116,340,141 expense, and investment is the Results + $194,444 Load is calculated as follows based of Operations for the Upper Great Plains ¥ $20,809,165 upon 1997 data: Customer Service Region—Pick-Sloan = $95,725,420 Missouri Basin. The source for unpaid Transmission Customer facility Network Transmission Load ..... 2,447,000 Long-Term Firm Point-to-Point investment balances is the amount credits are credits paid to Transmission Reserved Capacity ...... 331,000 reported in the Historical Financial Customers for facilities that are Document in Support of the Power integrated with the IS and increase both IS Transmission System Total Repayment Study for the Pick-Sloan the capability and the reliability of the Load ...... 2,778,000 Missouri Basin Program. The source for IS. The credits will be addressed in Heartland’s data is Heartland individual agreements, and appropriate Annual Costs: Western has calculated Consumers Power District Annual adjustments will be made in subsequent the annual cost of providing the various Report. The sources for Basin Electric’s rate calculations. The IS participants transmission and ancillary services data are Basin Electric’s Consolidated will evaluate requests for facility credits using a FERC recognized methodology Financial Statement, Rural Utility consistent with the FERC’s guidance in for annual cost calculation with fixed Service Form 12, and other accounting the FERC Order No. 888, other relevant charge rates for various cost records. FERC policy, and the terms of the Tariff. components. The cost components Annual Revenue Requirement for IS Transmission revenue credits include applicable to Western include operation Transmission Service: The rates for IS revenue from sales of Non-Firm, Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43165 discounted Firm, and Short-Term Firm Transmission Service Comments Electric’s generator step-up Point-to-Point Transmission Service; The following comments were transformers, West-side facilities, the revenue from existing transmission received during the public comment Miles City DC Tie, and Basin Electric’s agreements; revenue from Scheduling, period. UGPR paraphrased and generator outlet lines. UGPR should System Control, and Dispatch Services; combined comments when it did not include Heartland’s LRS transmission and any facility charges for transmission affect the meaning. UGPR’s response facilities. UGPR should consider facility investments included in the follows each comment. Changes were separate rates for the East and West revenue requirement. The following made in the formula rates and regions of its system. Response: UGPR, Basin Electric, and revenue credits have been applied in the calculations as a result of the comments Heartland facilities are integrated. The IS Transmission Rate. The estimated noted. rate includes each entity’s facilities that Non-Firm Point-to-Point Transmission Comment: UGPR should use the IS to are integrated. Therefore, it is Service credit of $11,531,175 is based provide open access transmission and inappropriate to develop a ‘‘Western on 1997 non-firm energy sales on the IS ancillary services. The following only’’ rate. Transmission System and actual sales of comments were made in support of this The FERC has allowed generator step- Non-Firm Point-to-Point Transmission comment. IS is consistent with the up transformers to be included in Service on the IS Transmission System FERC Order No. 888. The system is transmission rates. Western’s costs during 1997. Revenue from existing integrated since the facilities are jointly include step-up transformers in the transmission agreements was $9,277,990 planned, constructed, and operated as Corps switchyards which perform a in 1997. one system. The system cannot be transmission function. Basin Electric’s Network IS Transmission Service: The divided into separate systems defined costs also include step-up transformers. monthly charge for Network IS by ownership and still serve its function Western, Basin Electric, and Transmission Service is the product of as a reliable, efficient Transmission Heartland have separated their costs the Network Customer’s load-ratio share Provider. One IS rate eliminates between transmission and generation times one-twelfth (1/12) of the Annual pancaking of transmission tariffs and and have included only transmission Revenue Requirement for IS maximizes facility usage. IS will related costs in the Transmission maintain the postage stamp rate concept Transmission Service of $95,725,420. Service revenue requirement. Basin of paying once to travel anywhere on The load-ratio share is the ratio of the Electric’s high-voltage lines referred to the system. The IS will minimize Network Customer’s coincident hourly as ‘‘generator outlet lines’’ meet the revenue shifts. load to the monthly IS Transmission ‘‘seven factor test’’ and are, therefore, Response: Western concurs with these included in the Transmission Service System peak minus the coincident peak comments. for all IS Firm Point-to-Point revenue requirement. Comment: Western should remove The IS participants did not consider Transmission Service plus the IS Firm any end-use-load-serving substations the LRS facilities for inclusion in the IS Point-to-Point reservations, calculated and transmission facilities. UGPR since agreement of all the MBPP on a rolling 12-cp basis. should use the ‘‘seven factor test’’ to participants would be required. Firm Point-to-Point IS Transmission determine the facilities to exclude from UGPR operates under a unique Service: The rate for Firm Point-to-Point the IS. situation in that it utilizes generation IS Transmission Service is the Annual Response: UGPR has re-evaluated the and transmission facilities located on Revenue Requirement for IS facilities to be included in the IS using both sides of the East-West electrical Transmission Service divided by the IS the ‘‘seven factor test’’ and made separation in Montana to meet its Transmission System Total Load. The appropriate adjustments to the cost. responsibilities in the Mid-Continent formula for the monthly rate is as Based upon the re-evaluation, UGPR Area Power Pool (MAPP). UGPR has follows: Annual Revenue Requirement removed appropriate end-use-load- always operated all of its facilities on a for IS Transmission Service ÷ IS serving substation and transmission line single system basis. UGPR has marketed Transmission System Total Load ÷ 12 costs from the Annual Revenue the generation plants on both sides of months, or, using 1997 data, Requirement for IS Transmission the electrical separation across the $95,725,420 ÷ 2,778,000 kW ÷ 12 Service. entire P–SMBP–ED and integrated months. The formula produces a rate of Comment: UGPR should explain deliveries from its resources for service $2.87/kW-month for Firm Point-to-Point guidelines used to determine the to all UGPR power customers. The FERC Transmission Service. Firm Point-to- allocation of transmission facility and has held that when an entity is able to Point Transmission Service will be substation revenue requirements to adjust, second-by-second, the power offered on an ‘‘up to’’ basis at daily, generation versus transmission. flows over its entire system, including weekly, monthly, and yearly rates. Response: UGPR evaluated the direct current ties, to integrate substations and transmission lines resources, the entity is utilizing its Non-Firm Point-to-Point IS based on their usage (generation versus system as a single integrated Transmission Service: Non-Firm Point- transmission). The substation and transmission system and has allowed to-Point IS Transmission Service will be transmission line costs were then total system costs to be rolled into the offered at a rate up to, but never higher included in their respective categories. IS Transmission Rate. The Miles City than, the Firm Point-to-Point rate. The Watertown Operations Office costs were DC Tie provides some instantaneous formula for the rate is as follows: split based on the classification of Full support to the East-side transmission Monthly Firm Point-to-Point Rate ÷ 730 Time Equivalent employees in system and therefore contributes to the hours/month, or using 1997 data, $2.87/ generation or transmission. security aspect of reliability as defined kW-month ÷ 730 hours/month. The Communication facilities were split by the North American Electric formula produces a rate of 3.93 mills/ based on communication circuit usage. Reliability Council (NERC). The Miles kWh. Non-Firm Point-to-Point IS Comment: UGPR should exclude the City DC Tie provides reliability benefits Transmission Service will be offered at cost of non-Federal facilities and to MAPP by instantaneously responding hourly, daily, weekly, and monthly develop a ‘‘Western only’’ rate. UGPR to disturbances on the East-side rates. should remove Western’s and Basin transmission systems through MW 43166 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices reductions and MVAR support. any parties (Western, Basin Electric, or than net plant investment to arrive at Therefore, the Miles City DC Tie and the Heartland). If costs are determined to be Basin Electric’s weighted cost of capital. transmission facilities in the East and stranded they will be addressed in a Response: Basin Electric used the West regions of the UGPR system are separate contract between the entity interest expense shown on Rural Utility included in the IS rates. holding the stranded costs and the Service Form 12a, line 22, column b. Comment: If UGPR changes its rates to Transmission Customer, as described in This amount is the actual interest the IS rates which recover the cost of the Tariff filed by Western in Docket No. expense for the year. The interest Basin Electric and Heartland facilities, it NJ98–1–000. expense shown on page 89 of the will cause Western’s firm power rate to Comment: Who will review the costs brochure is based on an accrual increase. for Basin Electric and Heartland to schedule rather than actual interest Response: Western has existing determine whether they are appropriate, expense. bilateral contracts with Basin Electric and what recourse do the customers Basin Electric has no basis for using and Heartland. Western will continue have to question the costs? a 7 percent return on equity. In the the benefits and obligations contained Response: Basin Electric and revenue requirement calculation in this in those contracts through their terms. Heartland have submitted their data as Federal Register notice, Basin Electric The continuation of those benefits will a part of this public process. In addition, utilizes the 10 percent margin for minimize any firm power rate impacts their data is and will continue to be interest it charges its members which which may result from the use of the IS submitted to MAPP, just as any other equates to a return on equity of by Western for the delivery of firm transmission-owning MAPP member. approximately 9 percent. Since Basin power. On or about April 1 of each year the Electric now uses its margin for interest Comment: Several comments made in updated transmission cost data for to calculate its cost of capital, issue (3) the public process have compared the Western, Basin Electric, and Heartland above is no longer relevant. existing JTS rate used in the bilateral will be available for review. At this time Comment: Heartland should reduce agreements between Western, Basin a notice will be sent to Transmission their return on equity from 13 percent Electric, and Heartland to the proposed Customers of changes to the rates that to 7 percent because 13 percent far rate and have stated that the JTS rate is will be effective May 1. exceeds the return on equity the FERC either below cost or the IS rates are The Transmission Customers’ is allowing investor-owned utilities. inflated. Their comparisons and Response: Heartland has no basis for recourse is similar to any other entity in arguments are based on a JTS rate of using a 7 percent return on equity. In a public process or in the course of $26.27/kW-year and an IS rate of this Federal Register notice Heartland MAPP review. $36.84/kW-year. calculated its cost of capital using its Comment: Western should ask the Response: The JTS rate is a cost-based bond covenant requirement, similar to FERC to review the Open Access rate for the combined facilities of Basin Electric’s margin for interest Transmission and Ancillary Service Western, Basin Electric, Heartland, and method. Heartland is required by Rates for consistency with the standards MBMPA. The rate itself is applied to Section 8.2 of its Bond Resolution to of Section 212 of the FPA. each participants’ connected generation maintain rates at such levels that when and other resource inputs. A generation Response: In addition to seeking final revenues from rates are combined with or input based rate, like JTS, includes confirmation under the Delegation other funds that the total amount will be planning reserves (15 percent), losses Order, Western is requesting the FERC sufficient to meet 1.15 times the debt (approximately 4 percent), surplus review the proposed transmission rates service coverage requirement. Heartland generation and the load in the billing for the UGPR for consistency with the develops rates for its customers on this units for recovery of the cost. standards of section 212 (a) of the FPA, basis, and it therefore uses the same The IS rate is a cost-based rate for the 16 U.S.C. 824k (a). In doing so, Western approach here. combined facilities of Western, Basin is asking the FERC to determine that its Comment: Basin Electric should Electric, and Heartland. In addition, rates are comparable to what it charges allocate A&GE and general plant costs MBMPA has asked and will receive other customers and conform to the between IS transmission facilities and credit for certain facilities at Irv standards under the Delegation Order in other transmission facilities and only Simmons Substation. The rate is applied a manner similar to the FERC’s finding include the portion allocated to IS to the loads on the Transmission in United States Department of Energy- transmission facilities in the IS System. A load-based rate, like the IS Bonneville Power Administration, 80 Transmission System revenue rate, includes only the load in the FERC ¶ 61,118 (1997). requirement. billing units for the recovery of cost. Western has separately filed for Response: UGPR agrees with this Input-based billing units and load- approval of generally applicable terms comment, and Basin Electric’s costs based billing units are not directly and conditions under its Tariff in have been adjusted accordingly. comparable. Although input-based rates Docket No. NJ98–1–000. These rate Comment: The IS rate causes some (JTS) and load-based rates (IS) recover schedules will be utilized under the MBMPA members to pay twice for the equivalent costs, they have different Tariff for service in the UGPR of same transmission service. billing units. Therefore, the Western, and they are potentially Response: The MBMPA members will representation of the rate in $/kW-year subject to FERC review under the not pay twice for usage of the IS for the is not identical and cannot be compared standards of 16 U.S.C. 824k (a). same service. Members of MBMPA will one-for-one. If each rate is applied to the Comment: Basin Electric’s cost of pay for transmission and ancillary correct billing units they both recover capital calculation should be adjusted as services on the MBMPA resource the total and appropriate costs. follows: (1) the interest expense shown separately from the service they receive Comment: UGPR firm power on page 89, line 9, column (b) in the from Western in its bundled firm power customers should not be required to brochure should be used in the service. recover Basin Electric’s and Heartland’s calculation; (2) a 7 percent return on Comment: Western is not charging stranded costs. equity should be used; (3) Basin itself for the Basin Electric and Response: The rate design for the IS Electric’s total cost of capital should be Heartland costs. Therefore, the rates it does not recover the stranded costs of divided by its total capitalization rather charges itself are not comparable. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43167

Response: Western will be taking all Transmission Rates, they will be responsible for collection of funds from service under the IS rates and therefore included in the IS load. non-Federal participants and then is charging itself for the Basin Electric Comment: Western adjusted Basin distributed those funds based upon and Heartland costs. Cost sharing Electric’s Network load for Western contractual obligations. Western has benefits and obligations associated with peaking power service received, Dakota also approved the rate developed service under existing bilateral contracts Gasification Company (DGC) load, and pursuant to the contracts between the will continue until contract expiration. Neal IV generation but has not JTS members on a 2-year basis prior to Comment: The IS should provide for explained or justified these adjustments. implementation. Western is the operator discounted rates. Western should explain or correct this of the JTS and is responsible for Response: Western’s Tariff and IS calculation. establishing whether new uses of the rates allow for ‘‘up to’’ rates for the Firm Response: Firm peaking power service JTS could be entertained and meet and Non-Firm Point-to-Point sold to Basin Electric was adjusted out established reliability criteria. Transmission Service rates. IS rates, of Basin Electric’s Network load and Western was established pursuant to including discounts to those rates, will included in Western’s Network load sections 302(a)(1) (E) and (F) and be posted on the MAPP Open Access because Western is responsible for 302(a)(3) of the DOE Organization Act. Same-Time Information System (OASIS) transmission of peaking power service. Section 302(a)(11)(E) transferred to and will be available under the terms DGC load was adjusted out of Basin Western the power marketing functions and conditions as posted. Electric’s Network load in the of Reclamation, including the Comment: Basin Electric Class A September 15, 1997, proposed IS construction, operation, and member loads and Western’s preference Transmission Rates. DGC load is maintenance of transmission lines, and customer loads should be treated as included in Basin Electric’s Network attendant facilities. Western is native load in the determination of the load in the IS Transmission Rates in this complying with the expressed IS rates. Federal Register notice. Basin Electric’s ratemaking authority contained in load served by Neal IV generation is Response: Basin Electric Class A section 9(c) of the Reclamation Act of adjusted out of Basin Electric’s Network member loads and Western’s preference 1939 as well as section 5 of the Flood load because it does not utilize the IS customer loads are treated as native load Control Act of 1944. Section 9(c) states Transmission System. that: and are included in the IS Network Comment: MAPP Service Schedule F load. payments to the IS participants should Any sale of electric power or lease of Comment: Western should remove the be shown separately as revenue credits power privileges, made by the Secretary in connection with the operation of any project portion of its power supply and to Western, Basin Electric, and marketing expenses associated with or division of a project, shall be for such Heartland revenue requirements since periods, not to exceed forty years and at such power marketing from its O&M these revenues are received separately. expenses. rates as in his judgment will produce power Response: In the proposed IS rates, revenues at least sufficient to cover an Response: Western removed purchase estimates of MAPP Service Schedule F appropriate share of the annual operation power costs from O&M expenses. In payments were shown separately for and maintenance cost, * * * addition, Western’s remaining O&M each IS participant as the ‘‘Calculated The IS rate does ensure that Western expenses (including power marketing) Value of Non-Firm Point-to-Point will recover an appropriate share of the were split between generation and Transmission Services.’’ As the operator investment in the Federal transmission transmission based on the ratio of of the IS system, Western anticipates facilities in the associated projects. generation investment to total receiving all MAPP Service Schedule F Development of the IS Transmission investment and transmission investment payments made to the IS participants Rate is also consistent with section 5 of to total investment respectively. Only and then distributing these revenues the Flood Control Act of 1944. Section the portion of O&M expenses assigned back to the participants according to the 5 provides: to transmission was included in the IS agreement. Electric power and energy generated at transmission rate. Comment: Several comments were Comment: Western should use actual reservoir projects under the control of the received that Western does not have the War Department and in the opinion of the non-firm sales to calculate the revenue authority to develop an IS Transmission Secretary of War not required in the credit for Western’s use of the Rate with Basin Electric and Heartland operation of such projects shall be delivered Transmission System to make non-firm based upon its ratemaking requirements. to the Secretary of the Interior, who shall sales. Response: Western’s authority to transmit and dispose of such power and Response: Western agrees with this develop an IS Transmission Rate is energy in such manner as to encourage the comment and has used actual 1997 non- derived from the DOE Organization Act most widespread use thereof at the lowest firm sales in the calculation of the IS (42 U.S.C. 7101 et. seq.), and the possible rates to consumers consistent with Transmission Rate. sound business principles, the rate schedules Reclamation Act of 1902 (43 U.S.C. 371 to become effective upon confirmation and Comment: The load associated with et. seq.), as amended and supplemented approval by the Federal Power Commission. existing transmission contracts should by subsequent enactments. Western’s Rate schedules shall be drawn having regard be included in the load denominator Administrator has been given wide to the recovery (upon the basis of the rather than as a revenue credit. discretion in fulfilling those power application of such rate schedules to the Response: Western did not include marketing functions. Western’s use of capacity of the electric facilities of the the transactions covered under existing the IS rate is also consistent with the projects) of the cost of producing and transmission contracts in the IS load DOE policy regarding Power Marketing transmitting such electric energy, including because these transactions are at Administration’s compliance with the the amortization of the capital investment discounted rates and including them in allocated to power over a reasonable period spirit and intent of the FERC Order No. of years. Preference in the sale of such power the load would cause under recovery of 888 and the FERC’s preference for and energy shall be given to public bodies the IS revenue requirement. As these regional transmission groups. and cooperatives. The Secretary of Interior is transmission contracts expire and the Western’s role as the operator of the authorized, from funds to be appropriated by loads associated with them are IS is analogous to the responsibility it the Congress to construct or acquire, by converted to Western’s Tariff and IS had with the JTS. Western was purchase or other agreement, only such 43168 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices transmission lines and related facilities as Organization Act. In addition, Western’s among themselves as detailed in the may be necessary in order to make the power contracts contain General Power bilateral agreements. and energy generated at said projects Contract Provisions which specifically Comment: UGPR should continue to available in wholesale quantities for sale on state that any activity provided for participate in the planning of an fair and reasonable terms and conditions to under those contracts are ‘‘contingent Independent System Operator (ISO). facilities owned by the Federal government, Response: UGPR agrees and has public bodies, cooperatives, and privately on appropriations.’’ owned companies. All moneys received from Comment: Other comments received several representatives on the MAPP such sales shall be deposited in the Treasury stated that Federal law prohibits committees involved with the planning of the United States as miscellaneous ‘‘payments to third parties.’’ and development of the MAPP ISO. As receipts. Response: To the contrary, 16 U.S.C. the proposal is being developed, 833(i) and 825(s) do not state that third Western will provide input and data to Development of the IS Transmission party payments are unlawful. They do study the impact on the region and Rate by Western is consistent with the not address third party payments at all. Western. Western will continue its obligation to transmit and dispose of They do contain language indicating involvement. power and energy while encouraging Congress’ intention that all money Ancillary Services Discussion widespread use of the Federal facilities which the United States receives from consistent with sound business sales of power generated at Fort Peck Six ancillary services will be offered practices. The integration of the Federal Project and the Projects under control of to IS Transmission Customers; two of facilities with the non-Federal facilities the War Department (now the Corps which are required to be purchased by enables the marketing of Western’s operated facilities) are to be deposited IS Transmission Customers. These two resource as well as encouraging the in Treasury. Western is not violating are (1) Scheduling, System Control, and widespread use of the Federal this statute as a result of operating the Dispatch Service and (2) Reactive transmission facilities in the Missouri IS. Western will deposit money it Supply and Voltage Control Service River Basin. As stated above, this receives for debts due the United States from Generation Sources Service. The philosophy is repaying the Federal for sales of its resource into the Treasury remaining four ancillary services— investment through the rate schedules in the same manner it has in the past. Regulation and Frequency Response as they are recovering the appropriate However, money received on behalf of Service, Energy Imbalance Service, costs of producing and transmitting that Basin Electric and Heartland will not be Spinning Reserve Service, and resource. This practice is also a sound received as a result of debts owed to the Supplemental Reserve Service will also business principle given the current United States, but will be received for be offered. FERC philosophy which encourages debts owed Basin Electric and Sales of Regulation and Frequency widespread use of transmission Heartland. Therefore, money received Response Service, Energy Imbalance resources. on their behalf is not required to be Service, Spinning Reserve Service, and Section 5 of the Flood Control Act of deposited into the Treasury. Supplemental Reserve Service may be 1944 also permits Western to construct Western has in the past deposited and limited since Western has allocated its or acquire transmission lines that are will continue to deposit all money to power resources to preference entities necessary to deliver the Federal which the United States is entitled into under long-term commitments. If resource. In order to deliver that the Treasury in accordance with the Western is unable to provide these resource, including sales of surplus above statutes. Western has services from its own resources, an offer generation sold on a non-firm basis, and administered the JTS for over 30 years. will be made to purchase the services meet Western’s contractual obligations, This administration included the receipt and pass through these costs to the it is necessary to use the IS for of revenue from outside sources and customer, including an administrative reliability reasons. This has been then redistributing that revenue to other charge. confirmed in the Initial Decision in members of the JTS, Basin Electric, Scheduling, System Control, and Missouri Basin Municipal Power Heartland, and MBMPA. Western has Dispatch Service: Western’s annual Agency, 82 FERC ¶ 63,015 (1998). also approved the JTS rate prior to revenue requirement for Scheduling, Comment: Several comments received implementation. System Control, and Dispatch Service is stated that Western is violating the Anti- Western is obligated under existing determined by multiplying the portion Deficiency Act and various fiscal contracts to administer the transmission of the Watertown Operations Office net obligations by participating in the IS. facilities of Basin Electric and plant and communications facilities net Response: The Anti-Deficiency Act, Heartland. These obligations have arisen plant associated with Scheduling, 31 U.S.C. 1341(a)(1), states that an based upon the initial signing of the System Control, and Dispatch Service officer of the Federal Government may MBSG Agreement which was signed by by the transmission fixed charge rate. not involve the Government in a Reclamation in 1962 and the initial The formula rate for Scheduling, System contract or obligation requiring the bilateral agreements between Basin Control, and Dispatch Service is the payment of money prior to an Electric and Reclamation which created revenue requirement for this service appropriation unless authorized by law. the JTS. The role Western is playing in divided by the annual number of daily Western has the responsibility to meet the IS is analogous to the role it played schedules, or, using 1997 data, all of its contractual obligations that in administering the JTS, and Western is $1,684,495 ÷ 36,571 daily schedules. have been incurred pursuant to contractually obligated to perform those Using 1997 data, this methodology for Reclamation Law. Western is annually functions. determining the rate for Scheduling, appropriated money to perform its Comment: UGPR should continue its System Control, and Dispatch Service mission, including meeting the rights and obligations detailed in the has produced a rate of $46.06/schedule/ obligations it has incurred pursuant to bilateral contracts. In addition it should day. This rate and rate design is only its contracting authority. Western does allow all existing loads to stay on the recovering Western’s revenue utilize the IS to meet these contractual JTS and receive those benefits. requirement. obligations, and hence money has been Response: UGPR agrees and Western, Reactive Supply and Voltage Control appropriated to carry out the functions Basin Electric, and Heartland will from Generation Sources Service: as described under the DOE continue the obligations and benefits Western’s annual cost of providing Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43169

Reactive Supply and Voltage Control control area. The annual rate is then have been paraphrased where from Generation Sources Service is divided by 12 months to obtain a appropriate, without compromising the determined by multiplying the total P– monthly rate. Using 1997 data, this meaning of the comment. Certain SMBP–ED generation net plant by the methodology for determining the rate comments were duplicative in nature, generation fixed charge rate. The annual for Regulation and Frequency Response and were combined. UGPR’s response cost is multiplied by the capability used Service produced a rate of $0.05/kW- follows each comment. for reactive support to determine month of load for which Western is Comment: The rate for Reactive Western’s reactive service revenue providing this service. This rate and rate Supply and Voltage Control from requirement. Basin Electric’s annual design is recovering only Western’s Generation Sources Service is overstated revenue requirement is based upon the revenue requirement. Credit will be because it includes an excessive amount annual cost of equipment installed on given to those Transmission Customers of generation cost. The revenue its generators to provide this service. who provide Western with Automatic requirement should be determined by Western’s and Basin Electric’s annual Generation Control (AGC) of generation estimating the cost of the exciter/ revenue requirements are summed for facilities capable of providing this generator and then allocating that cost the total revenue requirement for this service. between real and reactive power service. The Reactive Supply and Energy Imbalance Service: This generation. In addition, the load used to Voltage Control Service from Generation service is not intended to provide derive the rate is understated. Sources Service rate is then derived by backup for generation supply. Energy Response: Western estimated the dividing the annual revenue shall be returned in like timeframes (on- amount of plant costs used to provide requirement by the IS Transmission peak, off-peak, etc.) and accounts zeroed Reactive Supply and Voltage Control System Total Load. The annual rate is out monthly. Western reserves the right from Generation Sources Service by then divided by 12 months to obtain a to apply a penalty to energy imbalances multiplying generation investment by monthly rate. Using 1997 data, this outside a 3 percent bandwidth (+/¥1.5 the ratio of condensing operation of the methodology for determining the rate percent deviation). The penalty for generators to total generator operation. for Reactive Supply and Voltage Control under deliveries outside the 3 percent When Western’s hydro units are Service from Generation Sources bandwidth is 100 mills/kWh. Over condensing, they are removing VARs Service has produced a rate of $0.07/ deliveries outside the 3 percent generated by line charging on the long kW-month for transmission service bandwidth will be forfeited to the transmission lines in the IS. Western provided. control area. believes this method is appropriate for Reserve Services: Western’s annual allocating costs to Reactive Supply and Regulation and Frequency Response cost of generation for Reserve Services Voltage Control Service from Generation Service: Regulation and Frequency is determined by multiplying the Sources Service. Response Service in the East side of the generation fixed charge rate by the P– The load used in the denominator of control area is provided primarily by SMBP–ED generation net plant the Reactive Supply and Voltage Control Oahe generation, and in the West side investment. The cost/kW-year is Service from Generation Sources of the control area by Fort Peck, both of determined by dividing the annual cost Service rate has been changed from the which are Corps of Engineer facilities. of generation by the plant capacity. The combined East and West control area To calculate the annual cost of capacity used for Reserve Services is coincident peaks to the IS Transmission providing Regulation and Frequency determined by multiplying Western’s System Total Load to reflect that each Response Service, the Corps of peak IS load by the MAPP operating unit of transmission service will be Engineer’s generation fixed charge rate reserve requirement of 5 percent. The charged for this service. Entities that is applied to Oahe generation and Fort cost/kW-year is multiplied by the have existing contracts at this time were Peck generation net plant investment. capacity used for Reserve Services to not included in the denominator This cost is divided by the capacity at determine the annual revenue because Western cannot charge these the plants to derive a dollar per kilowatt requirement for Reserve Services. The entities for this service and including amount for Oahe and Fort Peck annual revenue requirement for Reserve them would cause under recovery of Powerplants’ installed capacity. This Services is divided by Western’s peak costs. In the future when these contracts dollar per kilowatt amount is then transmission load to calculate the expire and these entities take service applied to the capacity of Oahe annual rate. The annual rate is then under the Tariff, their loads will be generation and Fort Peck generation divided by 12 months to obtain a included in the denominator. reserved for regulation and frequency monthly rate. Using 1997 data, this Comment: The Regulation and response in the control area. The methodology for determining the rate Frequency Response Service Rate is capacity reserved for Regulation and for reserve services has produced a rate overstated. The revenue requirement is Frequency Response Service has been of $0.12/kW-month of customer load. overstated because Western’s estimate of determined to be 2 percent of the annual This rate and rate design is recovering the percentage of generation required to peak load. The 2 percent value was only Western’s revenue requirement provide regulation service (4 percent) is derived by averaging the incremental associated with Reserve Services. If too high. In addition, the denominator change in hourly load in the control energy is taken under this service, the of 1,615 MW is too low. Finally, area for the calendar year and dividing energy charge will be the MAPP Rate for Western should give credit to this amount in half. The annual revenue Emergency Energy, which is presently Transmission Customers which requirement for Regulation and the greater of 30 mills/kWh or the purchase regulation service from third Frequency Response Service is prevailing market energy rate in the parties. determined by applying the dollar per region. Response: The 4 percent value was kilowatt amount to the capacity used for derived by averaging the incremental Regulation and Frequency Response Ancillary Services Comments change in hourly load in the control Service. An annual rate for Regulation UGPR received written comments area for the year. In accordance with and Frequency Response Service is then concerning the ancillary service rates recent FERC rulings related to this determined by dividing the revenue during the public comment and service, Western has divided the 4 requirement by the total load in the consultation period. These comments percent value in half. The denominator 43170 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices is Western’s 12-cp load in its East and Frequency Response Service, that entity under Rate Schedules UGP–AS1, UGP– West control areas, excluding those will be given an appropriate credit. AS2, UGP–AS3, UGP–AS4, UGP–AS5, entities such as Northwestern Public UGP–AS6, UGP–FPT1, UGP–NFPT1, Regulatory Flexibility Analysis Service Company, Montana-Dakota and UGP–NT1. The rate schedules shall Utilities Company, and Montana Power Pursuant to the Regulatory Flexibility remain in effect on an interim basis, Company that serve load in Western’s Act of 1980 (5 U.S.C. 601–612) (Act), pending the FERC confirmation and control areas but have existing each agency, when required by 5 U.S.C. approval of them or substitute formula transmission agreements and/or provide 553 to publish a proposed rule, is rates on a final basis through July 31, their own regulation and frequency further required to prepare and make 2003. control service. Including these entities’ available for public comment an initial Dated: July 31, 1998. loads in the denominator at this time regulatory flexibility analysis to Elizabeth A. Moler, would cause under recovery of costs describe the impact of the proposed rule associated with this service. If these on small entities. In this instance, the Deputy Secretary. entities take this service from Western initiation of the IS Transmission Rate Rate Schedule UGP–AS1 in the future their loads will be and ancillary service rate adjustment is Schedule 1 to Tariff included in the denominator. related to non-regulatory services August 1, 1998 Whether Western should provide provided by Western at a particular rate. Under 5 U.S.C. 601(2), rules of United States Department of Energy, credit to those preference customers Western Area Power Administration, who purchase Regulation and particular applicability relating to rates or services are not considered rules Upper Great Plains Region, Integrated Frequency Response Service from third System parties is outside the scope of this within the meaning of the Act. Since the process. IS Transmission Rates and ancillary Scheduling, System Control, and Comment: Western’s combined service rates are of limited applicability, Dispatch Service no flexibility analysis is required. percentages for Reserve Services (5 Effective percent) and Regulation and Frequency Environmental Evaluation Response Service (4 percent) are too The first day of the first full billing high. Customers should only have to In compliance with the National period beginning on or after August 1, purchase a total of 5 percent capacity for Environmental Policy Act (NEPA) of 1998, through July 31, 2003. 1969, 42 U.S.C. 4321 et seq.; the Council both Reserve Services and Regulation Applicable and Frequency Response Service. on Environmental Quality Regulations (40 CFR 1500–1508); and DOE NEPA Response: The MAPP operating This service is required to schedule Regulations (10 CFR part 1021), Western reserve requirement is 5 percent. the movement of power through, out of, has determined this action is Regulation and Frequency Response within, or into the Western Area Upper categorically excluded from the Service is not included in this Great Plains control area (WAUGP). The preparation of an environmental percentage and must therefore be charges for Scheduling, System Control, assessment or an environmental impact provided for in addition to operating and Dispatch Service are to be based on statement. reserves. In this Federal Register notice the rate referred to below. The formula Western has decreased the amount of Executive Order 12866 rate used to calculate the charges for capacity reserved for Regulation and service under this schedule was DOE has determined this is not a promulgated and may be modified Frequency Response Service from 4 significant regulatory action because it percent to 2 percent. pursuant to applicable Federal laws, does not meet the criteria of Executive regulations, and policies. Comment: Western should adjust the Order 12866, 58 FR 51735. Western has The rate will be applied to all rates for Reactive Supply and Voltage an exemption from centralized schedules for WAUGP non- Control from Generation Sources regulatory review under Executive Transmission Customers. The WAUGP Service and Regulation and Frequency Order 12866; accordingly, no clearance will accept any reasonable number of Response Service to recover the costs of of this notice by the Office of schedule changes over the course of the the facilities of Basin Electric and Management and Budget is required. day without any additional charge. Heartland that contribute to the services provided by Western and then provide Submission to Federal Energy The charges for Scheduling, System for appropriate credits. Regulatory Commission Control, and Dispatch Service may be modified upon written notice to the Response: The cost of Basin Electric’s The formula rates herein confirmed, customer. Any change to the charges for facilities that contribute to Reactive approved, and placed into effect on an the Scheduling, System Control, and Supply and Voltage Control from interim basis, together with supporting Dispatch Service shall be as set forth in Generation Sources Service have been documents, will be submitted to the a revision to this rate schedule included in that rate, and Basin Electric FERC for confirmation and approval on promulgated pursuant to applicable will receive the appropriate credit for a final basis. Federal laws, regulations, and policies these facilities. If Basin Electric, Order and made part of the applicable Service Heartland, or any other entity provides Agreement. Western with control of that entity’s In view of the foregoing, and pursuant The Upper Great Plains Region generation facilities and those to the authority delegated to me by the (UGPR) shall charge the non- generation facilities are capable of Secretary of Energy, I confirm, approve, Transmission Customer in accordance providing adequate Reactive Supply and and place into effect on an interim basis, with the rate then in effect. Voltage Control from Generation effective August 1, 1998, formula rates Sources Service and/or Regulation and for transmission and ancillary services Formula Rate Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43171

Rate per Annual Revenue Requirement for Scheduling, System Control, and Dispatch Service = Schedule per Day Number of Daily Schedules per Year

Rate Applicable The formula rate used to calculate the charges for service under this schedule The rate to be in effect August 1, In order to maintain transmission was promulgated and may be modified 1998, through April 30, 1999, is $46.06 voltages on all transmission facilities pursuant to applicable Federal laws, per schedule per day. This rate is based within acceptable limits, generation regulations, and policies. on the above formula and on 1997 data. facilities under the control of the The charges for VAR Support may be A recalculated rate will go into effect Western Area Upper Great Plains modified upon written notice to the every May 1 based on the above formula control area (WAUGP) are operated to Transmission Customer. Any change to and data. UGPR will notify the customer produce or absorb reactive power. Thus, the charges for VAR Support shall be as annually of the recalculated rate on or Reactive Supply and Voltage Control set forth in a revision to this rate before April 1. from Generation Sources Service (VAR schedule promulgated pursuant to Rate Schedule UGP–AS2 Support) must be provided for each applicable Federal laws, regulations, Schedule 2 to Tariff transaction on the transmission and policies and made part of the August 1, 1998 facilities. The amount of VAR Support applicable Service Agreement. The that must be supplied with respect to Upper Great Plains Region (UGPR) shall United States Department of Energy, the Transmission Customer’s charge the Transmission Customer in Western Area Power Administration, transaction will be determined based on accordance with the rate then in effect. Upper Great Plains Region, Integrated the VAR Support necessary to maintain Those Transmission Customers with System transmission voltages within limits that generators in the control area providing Reactive Supply and Voltage Control are generally accepted in the region and WAUGP with adequate VAR Support From Generation Sources Service consistently adhered to by WAUGP. will not be charged for this service. Any The Transmission Customer must waiver of this charge or any crediting Effective purchase this service from the arrangements for VAR Support must be documented in the Transmission The first day of the first full billing Transmission Provider. The charges for Customer’s Service Agreement. period beginning on or after August 1, such service will be based upon the rate 1998, through July 31, 2003. referred to below. Formula Rate

WAUGP Annual Revenue Requirement for VAR Support VAR Support = Rate Load Requiring VAR Support

Rate Applicable pursuant to applicable Federal laws, The rate to be in effect August 1, Regulation and Frequency Response regulations, and policies. 1998, through April 30, 1999, is: Service (Regulation) is necessary to Charges for Regulation may be Monthly: $0.07/kW-month provide for the continuous balancing of modified upon written notice to the Weekly: $0.016/kW-week resources, generation, and interchange, Transmission Customer. Any change to Daily: $0.002/kW-day with load and for maintaining Hourly: 0.096 mills/kWh the Regulation charges shall be as set scheduled interconnection frequency at This rate is based on the above forth in a revision to this rate schedule 60 cycles per second (60 Hz). Regulation promulgated pursuant to applicable formula and on 1997 financial and load is accomplished by committing on-line data. A recalculated rate will go into Federal laws, regulations, and policies generation whose output is raised or effect every May 1 based on the above and made part of the applicable Service lowered, predominantly through the use formula and updated financial and load Agreement. The Upper Great Plains of automatic generating control data. UGPR will notify the Transmission Region (UGPR) shall charge the equipment, as necessary to follow the Customer annually of the recalculated Transmission Customer in accordance moment-by-moment changes in load. rate on or before April 1. with the rate then in effect. The obligation to maintain this balance Rate Schedule UGP–AS3 between resources and load lies with Transmission Customers will not be Schedule 3 to Tariff charged for this service if they receive August 1, 1998 the Western Area Upper Great Plains control area (WAUGP) operator. The Regulation from another source, or self- United States Department of Energy, Transmission Customer must either supply it for their own load. Any waiver Western Area Power Administration, purchase this service from WAUGP or of this charge or any crediting Upper Great Plains Region, Integrated make alternative comparable arrangement for Regulation must be System arrangements to satisfy its Regulation documented in the Transmission Regulation and Frequency Response obligation. The charges for Regulation Customer’s Service Agreement. are referred to below. The amount of Service Formula Rate Regulation will be set forth in the Effective Service Agreement. The first day of the first full billing The formula rate used to calculate the period beginning on or after August 1, charges for service under this schedule 1998, through July 31, 2003. was promulgated and may be modified 43172 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

WAUGP Annual Revenue Requirement for Regulation Regulation = Rate Load in the Control Area Requiring Regulation

Rate The WAUGP shall establish a United States Department of Energy ¥ The rate to be in effect August 1, deviation band of +/ 1.5 percent (with Western Area, Power Administration, a minimum of 2 MW) of the scheduled 1998, through April 30, 1999, is: Upper Great Plains Region, Integrated transaction to be applied hourly to any System Monthly: $0.05/kW-month energy imbalance that occurs as a result Operating Reserve—Spinning Reserve Weekly: $0.012/kW-week of the Transmission Customer’s Daily: $0.002/kW-day scheduled transaction(s). Deviation Service This rate is based on the above accounting will be completed monthly Effective formula and on 1997 financial and load on an hour-to-hour basis. data. A recalculated rate will go into The formula rate used to calculate the The first day of the first full billing effect every May 1 based on the above charges for service under this schedule period beginning on or after August 1, formula and updated financial and load was promulgated and may be modified 1998, through July 31, 2003. data. UGPR will notify the Transmission pursuant to applicable Federal laws, Applicable Customer annually of the recalculated regulations, and policies. rate on or before April 1. The Energy Imbalance Service Spinning Reserve Service (Reserves) If resources are not available from a compensation may be modified upon is needed to serve load immediately in WAUGP resource, UGPR will offer to written notice to the Transmission the event of a system contingency. purchase the Regulation and pass Customer. Any change to the Reserves may be provided by generating through the costs to the Transmission Transmission Customer compensation units that are on-line and loaded at less Customer, plus an amount for for Energy Imbalance Service shall be as than maximum output. The administration. set forth in a revision to this schedule Transmission Customer must either Rate Schedule UGP-AS4 promulgated pursuant to applicable purchase this service from Western Area Schedule 4 to Tariff Federal laws, regulations, and policies Upper Great Plains control area August 1, 1998 and made part of the applicable Service (WAUGP) or make alternative Agreement. The Upper Great Plains comparable arrangements to satisfy its United States Department of Energy Region (UGPR) shall charge the Reserves obligation. The charges for Western Area Power Administration, Transmission Customer in accordance Reserves are referred to below. The Upper Great Plains Region, Integrated with the rate then in effect. amount of Reserves will be set forth in System Formula Rate the Service Agreement. Energy Imbalance Service UGPR reserves the right to implement The formula rate used to calculate the Effective the following upon providing notice to charges for service under this schedule the Transmission Customer. was promulgated and may be modified The first day of the first full billing For negative excursions (under pursuant to applicable Federal laws, period beginning on or after August 1, deliveries) outside the bandwidth, regulations, and policies. 1998, through July 31, 2003. WAUGP will assess a penalty charge of The charges for Reserves may be Applicable 100 mills/kWh. modified upon written notice to the For positive excursions (over Transmission Customer. Any change to Energy Imbalance Service is provided deliveries) outside the bandwidth, over the charges for Reserves shall be as set when a difference occurs between the deliveries of energy will be forfeited to forth in a revision to this rate schedule scheduled and the actual delivery of the control area. promulgated pursuant to applicable energy to a load located within the Federal laws, regulations, and policies Western Area Upper Great Plains Rate and made part of the applicable Service control area (WAUGP) over a single The bandwidth in effect August 1, Agreement. The Upper Great Plains hour. The Transmission Customer must 1998, through July 31, 2003, is 3 percent Region (UGPR) shall charge the either obtain this service from WAUGP (+/¥1.5 percent hourly deviation). Transmission Customer in accordance or make alternative comparable Rate Schedule UGP-AS5 with the rate then in effect. arrangements to satisfy its Energy Schedule 5 to Tariff Imbalance Service obligation. August 1, 1998 Formula Rate

WAUGP Annual Revenue Requirement for Reserves Reserves = Rate Load Requiring Reserves

Rate data. A recalculated rate will go into purchase the Reserves and pass through The rate to be in effect August 1, effect every May 1 based on the above the costs to the Transmission Customer, 1998, through April 30, 1999, is: formula and updated financial and load plus an amount for administration. data. UGPR will notify the Transmission Monthly: $0.12/kW-month In the event that Reserves are called Weekly: $0.028/kW-week Customer annually of the recalculated upon for Emergency Use, UGPR will Daily: $0.004/kW-day rate on or before April 1. assess a charge for energy used at the This rate is based on the above If resources are not available from a Mid-Continent Area Power Pool Rate for formula and on 1997 financial and load WAUGP resource, UGPR will offer to Emergency Energy, presently the greater Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43173 of 30 mills/kWh or the prevailing Applicable was promulgated and may be modified market energy rate in the region. The Supplemental Reserve Service pursuant to applicable Federal laws, Transmission Customer would be (Reserves) is needed to serve load in the regulations, and policies. responsible for providing the event of a system contingency, however, The charges for Reserves may be transmission to get the Reserves to its it is not available immediately to serve modified upon written notice to the destination. load but rather within a short period of Rate Schedule UGP–AS6 Transmission Customer. Any change to Schedule 6 to Tariff time. Reserves may be provided by the charges for Reserves shall be as set August 1, 1998 generating units that are on-line but forth in a revision to this rate schedule unloaded, by quick-start generation or promulgated pursuant to applicable United States Department of Energy, by interruptible load. The Transmission Federal laws, regulations, and policies Western Area Power Administration Customer must either purchase this and made part of the applicable Service Upper Great Plains Region, Integrated service from Western Area Upper Great Agreement. The Upper Great Plains System Plains control area (WAUGP) or make Region (UGPR) shall charge the Operating Reserve—Supplemental alternative comparable arrangements to Transmission Customer in accordance Reserve Service satisfy its Reserves obligation. The with the rate then in effect. charges for Reserves are referred to Effective below. The amount of Reserves will be Formula Rate The first day of the first full billing set forth in the Service Agreement. period beginning on or after August 1, The formula rate used to calculate the 1998, through July 31, 2003. charges for service under this schedule

WAUGP Annual Revenue Requirement for Reserves Reserves = Rate Load Requiring Reserves

Rate United States Department Of Energy, regulations, and policies and made part The rate to be in effect August 1, Western Area Power Administration, of the applicable Service Agreement. 1998, through April 30, 1999, is: Upper Great Plains Region, Integrated UGPR shall charge the Transmission Monthly: $0.12/kW-month System Customer in accordance with the rate then in effect. Weekly: $0.0028/kW-week Long-Term Firm and Short-Term Firm Daily: $0.004/kW-day Point-to-Point Transmission Service Discounts This rate is based on the above formula and on 1997 financial and load Effective Three principal requirements apply to data. A recalculated rate will go into The first day of the first full billing discounts for transmission service as effect every May 1 based on the above period beginning on or after August 1, follows: (1) any offer of a discount made formula and updated financial and load 1998, through July 31, 2003. by UGPR must be announced to all data. UGPR will notify the Transmission eligible Transmission Customers solely Customer annually of the recalculated Applicable by posting on the Open Access Same- rate on or before April 1. The Transmission Customer shall Time Information System (OASIS), (2) If resources are not available from a any Transmission Customer initiated WAUGP resource, UGPR will offer to compensate the Upper Great Plains Region (UGPR) each month for Reserved requests for discounts, including purchase the Reserves and pass through requests for use by one’s wholesale the costs to the Transmission Customer, Capacity pursuant to the applicable Firm Point-to-Point Transmission merchant or an affiliate’s use, must plus an amount for administration. occur solely by posting on the OASIS, In the event Reserves are called upon Service Agreement and rates referred to below. The formula rates used to and (3) once a discount is negotiated, for Emergency Energy, the UGPR will details must be immediately posted on assess a charge for energy used at the calculate the charges for service under this schedule were promulgated and the OASIS. For any discount agreed Mid-Continent Area Power Pool Rate for upon for service on a path, from Point(s) Emergency Energy, presently the greater may be modified pursuant to applicable Federal laws, regulations, and policies. of Receipt to Point(s) of Delivery, UGPR of 30 mills/kWh or the prevailing must offer the same discounted UGPR may modify the rate for Firm market energy rate in the region. The transmission service rate for the same Point-to-Point Transmission Service Transmission Customer would be time period to all eligible Transmission upon written notice to the Transmission responsible for providing the Customers on all unconstrained Customer. Any change to the rate for transmission to get the Reserves to its transmission paths that go to the same Firm Point-to-Point Transmission destination. point(s) of delivery on the Transmission Service shall be as set forth in a revision Rate Schedule UGP–FPT1 System. Schedule 7 to Tariff to this rate schedule promulgated August 1, 1998 pursuant to applicable Federal laws, Formula Rate

Firm Point-to-Point = Annual IS Transmission Service Revenue Requirement Transmission Rate IS Transmission System Total Load 43174 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Rate United States Department of Energy, Federal laws, regulations, and policies Western Power Area Administration, and made part of the applicable Service The rate to be in effect August 1, Upper Great Plains Region Integrated Agreement. UGPR shall charge the 1998, through April 30, 1999, is as System Transmission Customer in accordance follows. with the rate then in effect. Non-Firm Point-to-Point Transmission Maximum of: Service Discounts Yearly: $34.44/kW of reserved capacity Effective per year Three principal requirements apply to The first day of the first full billing discounts for transmission service as Monthly: $ 2.87/kW of reserved capacity period beginning on or after August 1, follows: (1) any offer of a discount made per month 1998, through July 31, 2003. by UGPR must be announced to all eligible Transmission Customers solely Weekly: $ 0.66/kW of reserved capacity Applicable per week by posting on the Open Access Same- The Transmission Customer shall Time Information System (OASIS), (2) Daily: $ 0.094/kW of reserved capacity compensate Upper Great Plains Region any Transmission Customer initiated per day (UGPR) for Non-Firm Point-to-Point requests for discounts, including This rate is based on the above Transmission Service pursuant to the requests for use by one’s wholesale formula and 1997 data. A recalculated applicable Non-Firm Point-to-Point merchant or an affiliate’s use, must rate will go into effect every May 1 Transmission Service Agreement and occur solely by posting on the OASIS, based on the above formula and updated rate referred to below. The formula rates and (3) once a discount is negotiated, used to calculate the charges for service financial and load data. UGPR will details must be immediately posted on under this schedule were promulgated notify the Transmission Customer the OASIS. For any discount agreed and may be modified pursuant to upon for service on a path, from Point(s) annually of the recalculated rate on or applicable Federal laws, regulations, before April 1. of Receipt to Point(s) of Delivery, UGPR and policies. must offer the same discounted Rate Sched. UGP–NFPT1 UGPR may modify the rate for Non- transmission service rate for the same Schedule 8 to Tariff Firm Point-to-Point Transmission time period to all eligible Transmission Service upon written notice to the August 1, 1998 Customers on all unconstrained Transmission Customer. Any change to transmission paths that go to the same the rate for Non-Firm Point-to-Point point(s) of delivery on the Transmission Transmission Service shall be as set System. forth in a revision to this rate schedule promulgated pursuant to applicable Formula Rate

Maximum = Firm Point-to-Point Point-to-Point Transmission Rate Transmission Rate

Rate United States Department of Energy, requirement used to calculate the The rate to be in effect August 1, Western Area Power Administration charges for this service under this 1998, through April 30, 1999, is: Upper Great Plains Region, Integrated schedule was promulgated and may be Maximum of: System modified pursuant to applicable Federal Monthly: $2.87/kW of reserved capacity Annual Transmission Revenue laws, regulations, and policies. per month Requirement for Network Integration UGPR may modify the charges for Weekly: $0.66/kW of reserved capacity Transmission Service Network Integration Transmission per week Service upon written notice to the Effective Daily: $0.094/kW of reserved capacity Transmission Customer. Any change to per day The first day of the first full billing the charges to the Transmission Hourly: 3.93 mills/kWh period beginning on or after August 1, Customer for Network Integration This rate is based on the above 1998, through July 31, 2003. Transmission Service shall be as set formula and 1997 data. A recalculated Applicable forth in a revision to this rate schedule rate will go into effect every May 1 promulgated pursuant to applicable based on the above formula and updated The Transmission Customer shall Federal laws, regulations, and policies financial and load data. UGPR will compensate the Upper Great Plains and made part of the applicable Service notify the Transmission Customer Region (UGPR) each month for Network Agreement. UGPR shall charge the annually of the recalculated rate on or Transmission Service pursuant to the Transmission Customer in accordance before April 1. applicable Network Integration Service with the revenue requirement then in Rate Schedule UGP–NT1 Agreement and annual revenue effect. Attachment H to Tariff requirement referred to below. The August 1, 1998 formula for the annual revenue Formula Rate

(Transmission Customer© s Load-Ratio Share × Annual Revenue Requirement for IS Transmission Service) Monthly Charge = 12 months Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43175

Annual Revenue Requirement 20460, via telephone: (202) 260–5133 or relevant documents are available from The annual revenue requirement in via E-mail: [email protected] the same source. Draft documents will effect August 1, 1998, through April 30, Dated: August 6, 1998. also be available on the SAB Website 1999, is $95,725,420. This annual Carol M. Browner, (http://www.epa.gov/sab) at least one week prior to the meeting. revenue requirement is based on 1997 Administrator. data. A recalculated annual revenue [FR Doc. 98–21671 Filed 8–11–98; 8:45 am] Dated: August 7, 1998. requirement will go into effect every BILLING CODE 6560±50±P Donald G. Barnes, May 1 based on updated financial data. Staff Director, Science Advisory Board. UGPR will notify the Transmission [FR Doc. 98–21702 Filed 8–11–98; 8:45 am] Customer annually of the recalculated ENVIRONMENTAL PROTECTION BILLING CODE 6560±50±P annual revenue requirement on or AGENCY before April 1. [FRL±6143±9] [FR Doc. 98–21600 Filed 8–11–98; 8:45 am] ENVIRONMENTAL PROTECTION BILLING CODE 6450±01±P Science Advisory Board; Executive AGENCY Committee; Notification of Public [OPP±34130; FRL±6024±3] Advisory Committee Meeting ENVIRONMENTAL PROTECTION Increasing Transparency for the AGENCY AGENCY: Environmental Protection Tolerance Reassessment Process; Agency (EPA). Availability of Preliminary Risk [FRL±6143±1] ACTION: Notice. Assessments for Nine Organophosphates Science Advisory Board; Closed SUMMARY: Pursuant to the Federal Meeting Notice Advisory Committee Act, Pub. L. 92– AGENCY: Environmental Protection An ad hoc Subcommittee of the 463, notification is hereby given that the Agency (EPA). Science Advisory Board will meet at the Science Advisory Board’s (SAB) ACTION: Notice. U.S. Environmental Protection Agency Executive Committee, will conduct a (EPA), Washington, D.C., on August 27– public teleconference meeting on SUMMARY: This Notice announces the 28, 1998. Pursuant to Section 10(d) of Thursday, August 27, 1998, between the availability of documents which were the Federal Advisory Committee Act hours of 2 pm and 3 pm. All times noted developed as part of EPA’s process for (FACA) and 5 U.S.C. 552(b)(c)(2) and are Eastern Time. The meeting is open making reregistration eligibility 552(b)(c)(6), EPA has determined that to the public, however, due to limited decisions for the organophosphate the meeting will be closed to the public. space, seating will be on a first-come pesticides and for tolerance The purpose of the meeting is to basis. reassessments consistent with the recommend to the Assistant The meeting will be coordinated Federal Food, Drug, and Cosmetic Act Administrator of the Office of Research through a conference call connection in as amended by the Food Quality and Development (ORD) the recipients Conference Room 1 North, Waterside Protection Act of 1996 (FQPA). These of the Agency’s 1997 Scientific and Mall (street level), U.S. Environmental documents are the preliminary risk Technological Achievement Cash Protection Agency, 401 M Street SW, assessments and related documents for Awards. These awards are established to Washington, DC 20460. The public is azinphos-methyl, bensulide, ethion, honor and recognize EPA employees welcome to attend the meeting fenamiphos, isofenphos, naled, phorate, who have made outstanding physically or through a telephonic link. profenofos, and terbufos. This Notice contributions in the advancement of Additional instructions about how to also starts a 60–day public comment science and technology through their participate in the conference call can be period for the preliminary risk research and development activities, as obtained by calling Ms. Priscilla Tillery- assessments. Comments are to be exhibited in publication of their results Gadson at (202) 260–4126 by August 21, limited to issues directly associated in peer reviewed journals. In making 1998. with the nine organophosphates that these recommendations, including the In this meeting the Executive have risk assessments placed in the actual cash amount of each award, the Committee plans to review drafts from docket and should be limited to issues Agency requires full and frank advice several of its Committees. These raised in those documents. EPA will from the Science Advisory Board. This anticipated drafts include: provide opportunity for comment on the advice will involve professional (a) Environmental Health Committee’s hazard assessments and FQPA safety judgments on the relative merits of Review of 1,3 Butadiene Risk factor assessments for the other various employees and their respective Assessment. organophosphates at a later date. work. Such personnel issues, where (b) Research Strategies Advisory Opportunity for public comment will disclosure would constitute an Committee’s Review of the ORD Budget also be provided at a later date for a unwarranted invasion of personal Presentation Process. variety of science issues. Allowing privacy, are protected from disclosure FOR FURTHER INFORMATION CONTACT: Any access and comments on the by exemptions 2 and 6 of Section member of the public wishing further preliminary risk assessments will 552(b)(c) of the U.S.C. In accordance information concerning the meeting or strengthen stakeholder involvement and with the provisions of the Federal wishing to submit comments should help ensure the Agency’s decisions Advisory Committee Act, minutes of the contact Dr. Donald G. Barnes, under FQPA are transparent, and based meeting will be kept for Agency and Designated Federal Officer for the on the best available information. The Congressional review. For more Executive Committee, Science Advisory tolerance reassessment process will information, contact Mr. Robert Flaak, Board (1400), U.S. Environmental ensure that the U.S. continues to have Team Leader, Committee Operations Protection Agency, Washington DC the safest and most abundant food Staff, Science Advisory Board (1400), 20460; telephone (202) 260–4126; FAX supply. The Agency cautions that these U.S. Environmental Protection Agency, (202) 260–9232; and via E-Mail at: risk assessments are preliminary 401 M Street, SW., Washington, D.C. [email protected]. Copies of the assessments only and that further 43176 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices refinements of the risk assessments will SUPPLEMENTARY INFORMATION: organophosphates, EPA has also be appropriate for some, if not all, of I. Background included in each docket the Agency’s these nine pesticides. These documents July 7, 1998 ‘‘Hazard Assessment of the reflect only the work and analysis EPA is making available preliminary Organophosphates’’ and the Agency’s risk assessments which have been conducted as of the time they were August 6, 1998 ‘‘FQPA Safety Factor developed as part of EPA’s process for produced and it is appropriate that, as Recommendations for the making reregistration eligibility new information becomes available and/ Organophosphates.’’ In general, these decisions for the organophosphate two documents were completed after or additional analyses are performed, pesticides and for tolerance the nine individual pesticide the conclusions they contain may reassessments consistent with the preliminary risk assessments discussed change. Federal Food, Drug, and Cosmetic Act above. The Agency notes that where the DATES: Written comments on these as amended by the Food Quality preliminary risk assessments are assessments must be submitted by Protection Act of 1996 (FQPA). The inconsistent with the Hazard October 13, 1998. Agency’s preliminary health effects risk assessments for the following nine Assessment and FQPA Safety Factor ADDRESSES: By mail, submit written organophosphate pesticides are Recommendation these latter comments in triplicte to: Public available in the individual pesticide assessments will supersede the relevant Information and Records Integrity dockets: azinphos-methyl, bensulide, portions of the preliminary risk Branch, Information Resources and ethion, fenamiphos, isofenphos, naled, assessments and will be incorporated Services Division (7502C), Office of phorate, profenofos, and terbufos. In into the revised individual pesticide Pesticide Programs, Environmental addition, the preliminary ecological risk assessments. The Agency also notes Protection Agency, 401 M St., SW., effects risk assessments for bensulide, that these documents reflect only the Washington, DC 20460. In person, ethion, fenamiphos, isofenphos, naled, work and analysis conducted as of the deliver comments to: Rm. 119, CM #2, phorate, profenofos, and terbufos have time they were produced, and as new 1921 Jefferson Davis Highway, also been docketed. The Hazard information becomes available and/or Arlington, VA. Assessment of the Organophosphates additional analyses are performed, the Comments and data may also be and FQPA Safety Factor conclusions they contain may change. submitted electronically to: opp- Recommendations for the The Agency is providing an [email protected]. Follow the Organophosphates have also been opportunity, through this Notice, for instructions under Unit II. of this included in the docket to help the interested parties to provide written document. No Confidential Business public in their review of the preliminary comments and input to the Agency on Information (CBI) should be submitted risk assessments. the preliminary risk assessments for the through e-mail. Included in the individual pesticide chemicals specified in this Notice. Such dockets are the Agency’s preliminary Information submitted as a comment comments and input could address, for risk assessments, the registrants’ example, the availability of additional concerning this document may be comments to this point, and any claimed confidential by marking any data to further refine the risk successive Agency reviews or related assessments, such as percent crop part or all of that information as CBI. correspondence regarding the Agency’s Information so marked will not be treated information or submission of risk assessment. As additional residue data from food processing disclosed except in accordance with comments, reviews, and risk assessment procedures set forth in 40 CFR part 2. studies, or could address the Agency’s modifications become available, these risk assessment methodologies and A copy of the comment that does not will also be docketed for the above nine assumptions as applied to these specific contain CBI must be submitted for organophosphate pesticides. The chemicals. Comments should be limited inclusion in the public record. Agency cautions that these risk to issues raised within the preliminary Information not marked confidential assessments are preliminary risk assessments and associated will be included in the public docket by assessments only and that further documents. EPA will provide other EPA without prior notice. The public refinements of the risk assessments will opportunities for public comment on docket is available for public inspection be appropriate for some, if not all, of other science issues associated with the in Rm. 119 at the Virginia address given these nine pesticides. These documents organophosphate tolerance reassessment above, from 8:30 a.m. to 4 p.m., Monday reflect only the work and analysis program. Failure to comment on any through Friday, excluding legal conducted as of the time they were such issues as part of this opportunity holidays. produced and it is appropriate that, as will in no way prejudice or limit a new information becomes available and/ To request a copy of any of the above commenter’s opportunity to participate or additional analyses are performed, listed preliminary risk assessments and fully in later notice and comment the conclusions they contain may related documents, contact the OPP processes. All comments should be change. Pesticide Docket, Public Information submitted by October 13, 1998 at the and Records Integrity Branch, in Rm. As the preliminary risk assessments for the remaining organophosphate address given above. Comments will 119 at the address given above or call become part of the Agency record for (703) 305–5805. pesticides are completed and registrants are given a 30–day review period to each individual pesticide to which they FOR FURTHER INFORMATION CONTACT: identify possible computational or other pertain. Karen Angulo, Special Review and clear errors in the risk assessment, these II. Public Record and Electronic Reregistration Division (7508W), Office risk assessments and registrant Submissions of Pesticide Programs, Environmental responses will be placed in the Protection Agency, 401 M St., SW., individual pesticide dockets. A Notice The official record for this action, as Washington, DC 20460. Office location, of Availability for subsequent well as the public version, has been telephone number, and e-mail address: assessments will appear in the Federal established for this action under the Crystal Station #1, 3rd Floor, 2800 Register. following docket control numbers. Crystal Drive, Arlington, VA; (703) 308– To provide users with the most recent When submitting written or electronic 8004; e-mail: [email protected]. information on the nine comments regarding the nine Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43177 organophosphates, use the following ingredients not included in any I. Products Containing Active docket control numbers: previously registered products pursuant Ingredients Not Included In Any to the provisions of section 3(c)(4) of the Previously Registered Products Federal Insecticide, Fungicide, and 1. File Symbol: 71144–E. Applicant: Rodenticide Act (FIFRA), as amended. Dominion BioSciences, Inc., Suite 1600, DATES: Written comments must be 1872 Pratt Drive, Blacksburg, VA 24060. azinphos-methyl OPP±34131 submitted by September 11, 1998. Product Name: Xanthine and bensulide OPP±34132 Oxypurinol Manufacturing Use ethion OPP±34133 ADDRESSES: By mail, submit written Concentrate. Insecticide. Active fenamiphos OPP±34134 comments identified by the document ingredient: Oxypurinol 50% and isofenphos OPP±34135 control number [OPP–30457] and the Xanthine 50%. Proposed classification/ naled OPP±34136 file symbols to: Public Information and Use: None. For manufacture of phorate OPP±34137 insecticide baits for commercial and/or profenofos OPP±34138 Records Intregrity Branch, Information terbufos OPP±34139 Resources and Services Division domestic indoor use. (7502C), Office of Pesticide Programs, 2. File Symbol: 71144–R. Applicant: A public version of this record, Environmental Protection Agency, 401 Dominion BioSciences, Inc. Product including printed, paper versions of M St., SW., Washington, DC 20460. In Name: Ecologix Cockroach Bait. electronic comments, which does not person, bring comments to: Insecticide. Active ingredient: include any information claimed as CBI, Environmental Protection Agency, Rm. Oxypurinol 1% and Xanthine 1%. is available for inspection from 8:30 Proposed classification/Use: None. For a.m. to 4 p.m., Monday through Friday, 119, CM #2, 1921 Jefferson Davis Hwy., Arlington, VA. use in commercial, industrial, and excluding legal holidays. The official residential areas. record is located at the Virginia address Comments and data may also be Notice of approval or denial of an in ‘‘ADDRESSES’’ at the beginning of submitted electronically to: opp- application to register a pesticide this document. [email protected]. Follow the product will be announced in the Electronic comments can be sent instructions under ‘‘SUPPLEMENTARY Federal Register. The procedure for directly to EPA at: INFORMATION.’’ No Confidential requesting data will be given in the [email protected] Business Information (CBI) should be Federal Register if an application is submitted through e-mail. approved. Electronic comments must be Information submitted as a comment Comments received within the submitted as an ASCII file avoiding the concerning this notice may be claimed specified time period will be considered use of special characters and any form before a final decision is made; of encryption. Comment and data will confidential by marking any part or all of that information as CBI. Information comments received after the time also be accepted on disks in specified will be considered only to the so marked will not be disclosed except Wordperfect 5.1/6.1 or ASCII file extent possible without delaying in accordance with procedures set forth format. All comments and data in processing of the application. electronic form must be identified by in 40 CFR part 2. A copy of the the appropriate docket control number. comment that does not contain CBI II. Public Record and Electronic Electronic comments on this document must be submitted for inclusion in the Submissions may be filed online at many Federal public record. Information not marked The official record for this notice, as Depository Libraries. confidential may be disclosed publicly well as the public version, has been by EPA without prior notice. The public List of Subjects established for this notice under docket docket is available for public inspection number [OPP–30457] (including Environmental protection. in Rm. 119 at the Virginia address given comments and data submitted Dated: August 6, 1998. above, from 8:30 a.m. to 4 p.m., Monday electronically as described below). A Jack E. Housenger, through Friday, excluding holidays. public version of this record, including printed, paper versions of electronic Acting Director, Special Review and FOR FURTHER INFORMATION CONTACT: By comments, which does not include any Reregistration Division, Office of Pesticide mail: Judy Loranger, Biopesticides and Programs. information claimed as CBI, is available Pollution Prevention Division (7511C), for inspection from 8:30 a.m. to 4 p.m., [FR Doc. 98–21679 Filed 8–11–98; 8:45 am] Office of Pesticide Programs, Monday through Friday, excluding legal BILLING CODE CODE 6560±50±F Environmental Protection Agency, 401 holidays. The official notice record is M St., SW., Washington, DC 20460. located at the address in ‘‘ADDRESSES’’ Office location, telephone number, and ENVIRONMENTAL PROTECTION at the beginning of this document. e-mail address: Rm. 902W-40, CM #2, AGENCY Electronic comments can be sent 1921 Jefferson Davis Highway, directly to EPA at: [OPP±30457; FRL±6020±4] Arlington, VA 22202, (703 308–8056, e- [email protected] mail: [email protected]. Dominion BioSciences, Inc.; Electronic comments must be SUPPLEMENTARY INFORMATION: EPA Applications to Register Pesticide submitted as an ASCII file avoiding the received applications as follows to Products use of special characters and any form register pesticide products containing AGENCY: Environmental Protection of encryption. Comment and data will active ingredients not included in any also be accepted on disks in Agency (EPA). previously registered products pursuant ACTION: Notice. Wordperfect 5.1/6.1 or ASCII file to the provision of section 3(c)(4) of format. All comments and data in SUMMARY: This notice announces receipt FIFRA. Notice of receipt of these electronic form must be identified by of applications to register pesticide applications does not imply a decision the docket number [OPP–30457]. products containing new active by the Agency on the applications. Electronic comments on this notice may 43178 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices be filed online at many Federal Proceedings, 63 FR 24121 (May 1, 1998). range of parties to help inform the Depository Libraries. Comments filed through the ECFS can Commission on what it may do to fulfill Authority: 7 U.S.C. 136. be sent as an electronic file via the its statutory obligation. Internet to . Parties should also file one comment in the Notice on the meaning copy of any document filed in this and scope of statutory terms such as Environmental protection, Pesticides docket with the Commission’s copy ‘‘advanced telecommunications and pest, Product registration. contractor, International Transcription capability,’’ ‘‘broadband,’’ and ‘‘high- Dated: July 24, 1998. Services, Inc. (ITS), 1231 20th St., N.W., speed.’’ Additionally, the Commission Phil Hutton, Washington, D.C. 20036, (202) 857– seeks comment on whether it was the 3800. intent of Congress to have the meaning Acting Director, Biopesticides and Pollution FOR FURTHER INFORMATION CONTACT: John of these terms evolve over time. Prevention Division, Office of Pesticide 4. The Commission further seeks Programs. W. Berresford, Senior Antitrust Attorney, Industry Analysis Division, comment about a variety of businesses and the role they can play in deploying [FR Doc. 98–21205 Filed 8–11–98; 8:45 am] Common Carrier Bureau, at 202–418– advanced telecommunications BILLING CODE 6560±50±F 1886 or [email protected]. capability. To this end, the Notice seeks SUPPLEMENTARY INFORMATION: This is a comment on the potential for summary of the Notice of Inquiry deployment from sources such as FEDERAL COMMUNICATIONS released August 7, 1998 (FCC 98–187). COMMISSION incumbent and competitive local The full text of the Notice of Inquiry is exchange carriers (LECs) and [FCC 98±187] available for inspection and copying interexchange carriers, as well as during normal business hours in the information service providers, satellites, Inquiry Concerning Advanced FCC Reference Center, Room 239, 1919 broadcasters, mobile service companies, Telecommunications Capability M Street, N.W., Washington, D.C. 20554. utilities, and high-bandwidth wireless The complete text is also available on providers. In addition to deployment AGENCY: Federal Communications the Commission’s website at http:// Commission. plans, the Notice seeks comment on the www.fcc.gov. The complete text also potential for new alternatives to the ACTION: Notice of inquiry. may be purchased from the incumbent LECs’ and cable television Commission’s copy contractor, SUMMARY: On August 7, 1998, the companies’ last miles and last hundred International Transcription Services, Federal Communications Commission feet of wired connections, especially to Inc. (ITS), 1231 20th St., N.W., (FCC) released a Notice of Inquiry to residential and small business Washington, D.C. 20036, (202) 857– solicit comment about the availability of customers. The Commission also seeks 3800. advanced telecommunications comment from consumers, public capability to all Americans. The Notice Summary of the Public Notice interest groups, and other persons on seeks comment from businesses, these matters. 1. In the Notice of Inquiry (Notice), 5. Consistent with section 706(a), the consumers, public interest groups, and the Commission solicits public others on what the statutory meaning of Commission seeks comment on what comment on what should be included in regulatory barriers exist that are ‘‘advanced telecommunications the term ‘‘advanced telecommunications capability’’ should include. In addition, delaying any of the above-mentioned capability’’ and to what degree that industries from proceeding forward the Notice seeks comment on the capability is being deployed or will be with deployment and what action the current and future availability of deployed to all Americans. The Commission should take to remove advanced telecommunications Commission seeks to determine whether those barriers. capability and the likelihood that it will the free market is delivering or will 6. In addition, the Commission be deployed to all Americans. Finally, deliver this capability to all Americans encourages all interested parties to the Notice seeks comment on what and, if not, what the Commission comment on the demand for advanced action the FCC should take if it finds should do to accelerate it. telecommunications capability. In that advanced telecommunications 2. Section 706 of the particular, the Notice seeks comment on capability is not being deployed to all Telecommunications Act of 1996, whether consumer demand is Americans in a reasonable and timely specifically directs the Commission and homogeneous, and if not, whether it fashion. each state commission to ‘‘encourage will vary by region, income or other DATES: Comments are due on or before the deployment on a reasonable and variables. The Notice also seeks to September 8, 1998. Reply comments are timely basis of advanced ascertain the cost of delivering due on or before October 8, 1998. telecommunications capability to all advanced telecommunications ADDRESSES: Comments and reply Americans . . . by utilizing, in a capability and what effects price has on comments should be sent to the Office manner consistent with the public both the supply of and demand for the of the Secretary, Federal interest, convenience, and necessity, services that result from deployment. Communications Commission, 1919 M price cap regulation, regulatory 7. Section 706(b) directs the Street, N.W., Suite 222, Washington, forbearance, measures that promote Commission to pay attention in D.C. 20554, with a copy to John W. competition in the local particular to the availability of advanced Berresford of the Common Carrier telecommunications market, or other telecommunications capability to Bureau, Federal Communications regulating methods that remove barriers ‘‘elementary and secondary schools and Commission, 2033 M Street, N.W., Suite to infrastructure investment.’’ Public classrooms.’’ The Notice seeks comment 399-A, Washington, D.C. 20054. Law 104–104, Title VII, § 706, Feb. 8, on whether the market will adequately Comments may also be filed using the 1996, 110 Stat. 153, reproduced in the serve the needs of schools and Commission’s Electronic Comment notes under 47 U.S.C. 157. Pursuant to classrooms as well as libraries, and if Filing System (ECFS). See Electronic this Congressional directive, the Notice not, to what extent any shortage in Filing of Documents in Rulemaking seeks public comment from a broad service will be addressed by other Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43179 government programs designed to 1.415, 1.419, and 1.430, interested 16. Other requirements. Comments address their needs. parties may file comments on or before and reply comments must also comply 8. The Notice seeks comment on the September 8, 1998. Reply comments are with § 1.49 and all other applicable current trends in deployment and due on or before October 8, 1998. To file sections of the Commission’s rules. We whether they indicate that certain formally in the proceeding, you must also direct all interested parties to segments of the population may be file an original and six copies of all include the name of the filing party and underserved by the market. The Notice comments, reply comments, and the date of the on each page of their also notes that in rural and inner-city supporting comments. If you want each comments and reply comments. communities, the market may fail to Commissioner to receive a personal Ordering Clause deliver advanced telecommunications copy of your comments, you must file capability. The Notice seeks comment an original and twelve copies. 17. Accordingly, it is ordered, on whether advanced Comments and reply comments should pursuant to section 706 of the telecommunications capability is or will be sent to the Office of the Secretary, Telecommunications Act of 1996, that be deployed in these areas. Federal Communications Commission, notice is hereby given of the inquiry 9. Congress directs the Commission in 1919 M Street, N.W., Suite 222, described above and that comment is section 706(b) to exercise its regulatory Washington, D.C. 20554, with a copy to sought on these issues. authority to remove barriers to John W. Berresford of the Common Federal Communications Commission. infrastructure investments if it finds that Carrier Bureau, Federal William F. Caton, deployment is not occuring ‘‘in a Communications Commission, 2033 M Deputy Secretary. reasonable and timely fashion.’’ The Street, N.W., Suite 399, Washington, [FR Doc. 98–21729 Filed 8–11–98; 8:45 am] Notice seeks comment on how the D.C. 20036. Parties should also file one Commission should do so. The Notice copy of any document filed in this BILLING CODE 6712±01±P specifically seeks comment on how the docket with the Commission’s copy Commission should exercise its contractor, International Transcription forbearance authority and which Services, Inc. (ITS), 1231 20th St., N.W., FEDERAL MARITIME COMMISSION statutory provisions or rules it should Washington, D.C. 20036, (202) 857– Ocean Freight Forwarder License forbear from applying. 3800. Applicants 10. The Notice also seeks comment on 15. Comments may also be filed using the appropriate balance between section the Commission’s Electronic Comment Notice is hereby given that the 706 and the policy and program for Filing System (ECFS). See Electronic following applicants have filed with the universal service under 47 U.S.C. § 254. Filing of Documents in Rulemaking Federal Maritime Commission 11. The Commission seeks comment Proceedings, 63 FR 24121 (May 1, 1998). applications for licenses as ocean freight on what structure of regulation will best Comments filed through the ECFS can forwarders pursuant to section 19 of the promote the deployment of advanced be sent as an electronic file via the Shipping Act of 1984 (46 U.S.C. app. telecommunications capability and will Internet to . Only one copy of Persons knowing of any reason why advanced services. This question may electronically filed comments must be any of the following applicants should become important if competition in submitted. Commenters must note on not receive a license are requested to advanced services emerges among the subject line whether an electronic contact the Office of Freight Forwarders, common carriers (wire and wireless), submission is an exact copy of formal Federal Maritime Commission, cable television, broadcasters, and comments. Commenters also must Washington, D.C. 20573. information service providers. include their full name and U.S. Postal CrossBar, Inc., 2012 E. Phelps, Suite A1, 12. Section 706 calls on the State Service mailing address in their Springfield, MO 65802, Officer: Ray commissions to encourage deployment submission. Further information on the Walker Crossland, President of advanced telecommunications process of submitting comments Washington World Trading Corp. d/b/a capability. The Commission seeks electronically is available at . Freight Forwarders, 1280 Golfview best interact with them to ensure that 16. Parties are also asked to submit Drive East, Pembroke Pines, FL 33026, the goals of section 706 are achieved. comments and reply comments on Officers: Lucia Novoa, President, Procedural Matters diskette. Such diskette submissions Lauro W. Novoa, Exec. Vice President would be in addition to and not a Sari Express, Inc., 8282 NW 66th Street, A. Ex Parte Presentations substitute for the formal requirements Miami, FL 33166, Officers: Ruggeiro 13. Subject to the provisions of 47 addressed above. Parties submitting Suppa, President, Elena Martinez, CFR § 1.1203 concerning ‘‘Sunshine diskettes should submit them to: Ms. Vice President Period’’ prohibitions, this proceeding is Terry Conway, Common Carrier Bureau, Woojin Shipping, Inc. d/b/a Axon Int’l, exempt from ex parte restraints and Industry Analysis Division, 2033 M 960 Rand Road, #228, Des Plaines, IL disclosure requirements, pursuant to 47 Street, N.W., Room 500, Washington, 60016, Officer: Young H. Kim, CFR § 1.1204(b)(1). Because many of the D.C. 20554. Such diskettes should be on President matters on which we request comment a 3.5 inch diskette formatted in an IBM Dynamic Network Team, Inc. d/b/a DNT in the Notice may call on parties to compatible format using WordPerfect Container Line, 150–40 183rd Street, disclose proprietary information, we 5.1 for Windows software. The diskette Rm. 117, Jamaica, NY 11413, Officers: suggest that parties consult 47 CFR should be submitted in ‘‘read only’’ Wendy Wei, President, David Wei, § 0.459 about the submission of mode. The diskette should be clearly General Manager confidential information. labeled with the party’s name, Highland Forwarding, Inc., 3 proceeding, type of pleading (comment Highlander Way, Suite #315, B. Comment Filing Procedures or reply comment), and date of Manchester, NH 03103, Officers: 14. Pursuant to §§ 1.415, 1.419, and submission. The diskette should be Radek Maly, President, Edward 1.430 of the Commission’s rules, 47 CFR accompanied by a cover letter. Kaplan, Treasurer 43180 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Tradewinds USA, Inc., 4027 S. Wells B. Federal Reserve Bank of Chicago ADDRESSES: Comments should be Street, Chicago, IL 60609, Officers: (Philip Jackson, Applications Officer) directed to: FTC/Office of the Secretary, Cynthia Ramirez-Berry, President, 230 South LaSalle Street, Chicago, Room 159, 6th St. and Pa. Ave., NW., Steven Cohen, Secretary/Treasurer Illinois 60690-1413: Washington, DC 20580. N.I. Logistics American Corporation, 1. Associated Banc-Corp, Green Bay, FOR FURTHER INFORMATION CONTACT: 1211 Avenue of the Americas, New Wisconsin; to acquire 100 percent of the Lee Peeler, FTC/S–4002, Washington, York, NY 10036, Officer: Hidetsugu voting shares of Associated Bank DC 20580. (202) 326–3090. Akagi, President Illinois, N.A., Rockford, Illinois (in SUPPLEMENTARY INFORMATION: Pursuant Dated: August 7, 1998. organization). to Section 6(f) of the Federal Trade 2. Holland Financial Corporation, Joseph C. Polking, Commission Act, 38 Stat. 721, 15 U.S.C. Holland, Michigan; to become a bank 46 and Section 2.34 of the Commission’s Secretary. holding company by acquiring 100 [FR Doc. 98–21615 Filed 8–11–98; 8:45 am] Rules of Pracitce (16 CFR 2.34), notice percent of the voting shares of The Bank is hereby given that the above-captioned BILLING CODE 6730±01±M of Holland, Holland, Michigan (in consent agreement containing a consent organization). order to cease and desist, having been C. Federal Reserve Bank of San filed with and accepted, subject to final FEDERAL RESERVE SYSTEM Francisco (Maria Villanueva, Manager approval, by the Commission, has been of Analytical Support, Consumer placed on the public record for a period Formations of, Acquisitions by, and Regulation Group) 101 Market Street, Mergers of Bank Holding Companies of sixty (60) days. The following San Francisco, California 94105-1579: Analysis to Aid Public Comment 1. Eggemeyer Advisory Corp., Castle The companies listed in this notice describes the terms of the consent Creek Capital, LLC, and Castle Creek have applied to the Board for approval, agreement, and the allegations in the Capital Partners Fund-I, LP, all of pursuant to the Bank Holding Company complaint. An electronic copy of the Rancho Santa Fe, California; to acquire Act of 1956 (12 U.S.C. 1841 et seq.) full text of the consent agreement more than 5 percent of the voting shares (BHC Act), Regulation Y (12 CFR Part package can be obtained from the FTC of Continental National Bancshares, 225), and all other applicable statutes Home Page (for August 6, 1998), on the Inc., El Paso, Texas, and thereby and regulations to become a bank World Wide Web, at ‘‘http:// indirectly acquire Continental National holding company and/or to acquire the www.ftc.gov/os/actions97.htm.’’ A Bank, El Paso, Texas. assets or the ownership of, control of, or paper copy can be obtained from the 2. State National Bancshares, Inc., the power to vote shares of a bank or FTC Public Reference Room, Room H– Lubbock, Texas; to acquire 100 percent bank holding company and all of the 130, Sixth Street and Pennsylvania of the voting shares of Continental banks and nonbanking companies Avenue, NW, Washington, DC 20580, National Bancshares, Inc., El Paso, owned by the bank holding company, either in person or by calling (202) 326– Texas, and thereby indirectly acquire including the companies listed below. 3627, Public comment is invited. Such Continental National Bank, El Paso, The applications listed below, as well comments or views will be considered Texas. as other related filings required by the by the Commission and will be available Board, are available for immediate Board of Governors of the Federal Reserve for inspection and copying at its inspection at the Federal Reserve Bank System, August 7, 1998. principal office in accordance with indicated. The application also will be Robert deV. Frierson, Section 4.9(b)(6)(ii) of the Commission’s available for inspection at the offices of Associate Secretary of the Board. Rules of Practice (16 CFR 4.9(b)(6)(ii)). the Board of Governors. Interested [FR Doc. 98–21632 Filed 8–11–98; 8:45 am] persons may express their views in BILLING CODE 6210±01±F Analysis of Proposed Consent Order to writing on the standards enumerated in Aid Public Comment the BHC Act (12 U.S.C. 1842(c)). If the The Federal Trade Commission has proposal also involves the acquisition of FEDERAL TRADE COMMISSION accepted an agreement, subject to final a nonbanking company, the review also approval, to a proposed consent order includes whether the acquisition of the [File No. 982±3050] from Allied Domecq Spirits & Wine nonbanking company complies with the Allied Domecq Spirits & Wine Americas, Inc. and Allied Domecq standards in section 4 of the BHC Act. Americas, Inc. et al.; Analysis to Aid Spirits & Wine USA, Inc. d/b/a Hiram Unless otherwise noted, nonbanking Public Comment Walker, Delaware and Michigan activities will be conducted throughout corporations, respectively (hereinafter the United States. AGENCY: Federal Trade Commission. collectively referred to as Allied). Unless otherwise noted, comments ACTION: Proposed Consent Agreement. The proposed consent order has been regarding each of these applications placed on the public record for sixty must be received at the Reserve Bank SUMMARY: The consent agreement in this (60) days for reception of comments by indicated or the offices of the Board of matter settles alleged violations of interested persons. Comments received Governors not later than September 8, federal law prohibiting unfair or during this period will become part of 1998. deceptive acts or practices or unfair the public record. After sixty (60) days, A. Federal Reserve Bank of Atlanta methods of competition. The attached the Commission will again review the (Lois Berthaume, Vice President) 104 Analysis to Aid Public Comment agreement and the comments received Marietta Street, N.W., Atlanta, Georgia describes both the allegations in the and will decide whether it should 30303-2713: draft complaint that accompanies the withdraw from the agreement and take 1. First National Bancshares, Inc., consent agreement and the terms of the other appropriate action or make final Bradenton, Florida; to become a bank consent order—embodied in the consent the agreement’s proposed order. holding company by acquiring 100 agreement—that would settle these The Commission’s complaint in this percent of the voting shares of First allegations. matter concerns two nearly identical National Bank of Manatee, Bradenton, DATES: Comments must be received on television advertisements for Allied’s Florida. or before October 13, 1998. Kahlua White Russian pre-mixed Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43181 cocktail. According to the complaint, p. 10 (1994) (guidance on comparative full text of the consent agreement these ads falsely represented that the nutrient content claims). package can be obtained from the FTC product was a ‘‘LOW ALCOHOL The remaining parts of the order Home Page (for August 6, 1998), on the BEVERAGE.’’ Allied has ceased making contain record keeping (Part II); order World Wide Web, at ‘‘http:// this representation. distribution (Part III); notification of www.ftc.gov/os/actions97.htm.’’ A Paragraph seven of the complaint sets corporate change (Part IV); compliance paper copy can be obtained from the out several reasons why the Kahlua report filing (Part V) and sunset (VI) FTC Public Reference Room, Room H– White Russian pre-mixed cocktail provisions. 130, Sixth Street and Pennsylvania should not be represented as a low The purpose of this analysis is to Avenue, N.W., Washington, D.C. 20580, alcohol beverage. It has significant facilitate public comment on the either in person or by calling (202) 326– alcohol content, 11.8 proof (5.9% proposed order, and it is not to 3627. Public comment is invited. Such alcohol by volume), equal to or greater constitute an official interpretation of comments or views will be considered than numerous other alcohol beverages. the agreement and proposed order or to by the Commission and will be available For example, a Kahlua White Russian modify in any way their terms. for inspection and copying at its principal office in accordance with has substantially more alcohol ounce for By direction of the Commission. ounce than many beers, malt liquors Section 4.9(b)(6)(ii) of the Commission’s Benjamin I. Berman, Rules of Practice (16 CFR 4.9(b)(6)(ii). and wine coolers. For some people, Acting Secretary. drinking as few as two or three Kahlua [FR Doc. 98–21611 Filed 8–11–98; 8:45 am] Analysis of Proposed Consent Order to White Russians will begin to impair Aid Public Comment normal functions, such as driving. It is BILLING CODE 6750±01±M The Federal Trade Commission has also pertinent that the Bureau of accepted an agreement, subject to final Alcohol, Tobacco and Firearms has FEDERAL TRADE COMMISSION approval, to a proposed consent order limited use of the term ‘‘low alcohol,’’ from Beck’s North America, Inc. for the purposes of beer and malt liquor, [File No. 982±3092] (‘‘BNAI’’), a Delaware corporation. to products with less than 2.5% alcohol The proposed consent order has been by volume. The alcohol content of a Beck's North America, Inc.; Analysis to Aid Public Comment placed on the public record for sixty Kahlua White Russian is substantially (60) days for reception of comments by higher, with 5.9% alcohol by volume. AGENCY: Federal Trade Commission. interested persons. Comments received Accordingly, the complaint alleges that ACTION: Proposed consent agreement. during this period will become part of the low alcohol beverage representation the public record. After sixty (60) days, was false or misleading. SUMMARY: The consent agreement in this the Commission will again review the The consent order contains provisions matter settles alleged violations of agreement and the comments received designed to remedy the violations federal law prohibiting unfair or and will decide whether it should charged and to prevent Allied from deceptive acts or practice or unfair withdraw from the agreement and take engaging in similar acts in the future. methods of competition. The attached other appropriate action or make final Part I of the order prohibits any Analysis to Aid Public Comment the agreement’s proposed order. representation that any beverage alcohol describes both the allegations in the The Commission’s complaint in this product containing 5.9% alcohol by draft complaint that accompanies the matter concerns two television volume is a low alcohol beverage, as consent agreement and the terms of the advertisements for Beck’s Beer that well as any misrepresentation, through consent order—embodied in the consent depict young adults drinking alcohol on numerical or descriptive terms, or any agreement—that would settle these a sailing ship, while engaging in other means, of the amount of alcohol allegations. activities that allegedly pose a contained in any beverage alcohol DATES: Comments must be received on substantial risk of injury. BNAI has product. Part I of the order does not or before October 13, 1998. ceased disseminating the ads that are prohibit Allied from making any the subject of the complaint. ADDRESSES: Comments should be representation about the amount of The challenged advertisements depict direced to: FTC/Office of the Secretary, alcohol contained in any beverage young adults partying and drinking beer Room 159, 6th St. and Pa. Ave., N.W., alcohol product that is specifically on a schooner at sea. On the deck of the Washington, D.C. 20580. required in advertising by the Bureau of boat is a large bucket of ice, filled with Alcohol, Tobacco and Firearms. Part I of FOR FURTHER INFORMATION CONTACT: bottles of Beck’s Beer. Almost all of the the order also does not prohibit Allied Lee Peeler, FTC/S–4002, Washington, passengers are holding bottles of beer, from making non-misleading claims D.C. 20580. (202) 326–3090. with one male passenger with a bottle presenting clear and accurate SUPPLEMENTARY INFORMATION: Pursuant of beer in hand standing precariously on comparisons of the alcohol content of to Section 6(f) of the Federal Trade the bowsprit (a spar extending almost Kahlua White Russians and any other Commission Act, 38 Stat. 721, 15 U.S.C. horizontally off the bow of the boat), specified beverage alcohol product. 46 and Section 2.34 of the Commission’s and others sitting or leaning on the edge Indeed, Commission policy encourages Rules of Practice (16 CFR 2.34), notice of the bow, where there is no railing. truthful comparative advertising as an is hereby given that the above-captioned Because of the significant risks of important means of informing consent agreement containing a consent drinking while boating, the U.S. Coast consumers about the relative merits of order to cease and desist, having been Guard has recently initiated a public competing products. See, In Regard to filed with and accepted, subject to final education campaign designed to Comparative Advertising, 15 CFR 14.15 approval, by the Commission, has been encourage boat operators and passengers (favoring comparative advertising placed on the public record for a period to ‘‘boat safe and sober.’’ In this case, generally); Guides for the Use of of sixty (60) days. The following the challenged ads depict individuals Environmental Marketing Claims, 16 Analysis to Aid Public Comment combining drinking with activities— CFR 260.6(d) (guidance on comparative describes the terms of the consent bowriding and standing on a bowsprit— environmental claims); Enforcement agreement, and the allegations in the that could constitute negligent boat Policy Statement on Food Advertising, complaint. An electronic copy of the operation under federal and state 43182 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices boating safety statutes. In addition, the II); order distribution (Part III); deceptive as well as unfair under advertising is inconsistent with the notification of corporate change (Part Section 5 of the FTC Act. provisions of the Beer Institute IV); compliance report filing (Part V) [FR Doc. 98–21612 Filed 8–11–98; 8:45 am] Advertising and Marketing Code, which and sunset (Part VI) provisions. BILLING CODE 6750±01±M provides that ‘‘[b]eer advertising . .. The purpose of this analysis is to should not portray or imply illegal facilitate public comment on the activity of any kind,’’ and ‘‘[b]eer proposed order, and it is not to FEDERAL TRADE COMMISSION advertising . . . should not associate or constitute an official interpretation of [File No. 971±0065] portray beer drinking before or during the agreement and proposed order or to activities which require a high degree of modify in any way their terms. alertness or coordination.’’ Fair Allocation System, Inc.; Analysis Paragraph five of the complaint By direction of the Commission. to Aid Public Comment Benjamin I. Berman, describes the challenged advertisements AGENCY: Federal Trade Commission. Acting Secretary. as depicting individuals drinking Beck’s ACTION: Proposed consent agreement. beer while engaging in acts that require Statement of Commissioner Mozelle W. a high degree of alertness and SUMMARY: Thompson The consent agreement in this coordination to avoid falling overboard. matter settles alleged violations of This conduct is inconsistent with the Today, the Commission voted to federal law prohibiting unfair or Beer Institute’s own Advertising and accept a consent agreement with Beck’s deceptive acts or practices or unfair Marketing Code and may also violate North America, Inc. (‘‘Beck’s’’) in File methods of competition. The attached federal and state boating safety laws. It Number 982–3092 on grounds that Analysis to Aid Public Comment alleges that the risks associated with Beck’s disseminated or caused to be describes both the allegations in the such activities while boating are greatly disseminated unfair television draft complaint that accompanies the increased by consumption of alcohol. It advertisements. I joined in that vote. I consent agreement and the terms of the notes that even low and moderate blood also believe, however, that the consent order—embodied in the consent alcohol levels sufficiently affect advertisements at issue were deceptive. agreement—that would settle these coordination and balance to place The Commission has defined deceptive allegations. passengers at increased risk of falling advertising as ‘‘that which contains a DATES: Comments must be received on overboard and drowning, and that many representation, omission or practice that or before October 13, 1998. persons are unaware of this increased is likely to mislead the consumer acting ADDRESSES: Comments should be risk. This paragraph also notes that as reasonably in the circumstances, to the directed to: FTC/Office of the Secretary, many as one-half of all boating fatalities consumer’s detriment.’’ 1 In my view, Room 159, 6th St. and Pa. Ave., N.W., are alcohol-related, including an average the Beck’s television advertisements if Washington, D.C. 20580. of 60 recreational boat fatalities this definition. FOR FURTHER INFORMATION CONTACT: annually from falling overboard while William Baer, FTC/H–374, Washington, drinking. Accordingly, respondent’s First, I believe the advertisements D.C. 20580, (202) 326–2932; or Charles depiction of this activity in its imply to reasonable targeted consumers Harwood, Federal Trade Commission, advertisements is likely to cause that consuming alcohol while boating is Seattle Regional Office, 915 Second substantial injury to consumers that is appropriate and/or safe. In fact, the Avenue, Suite 2896, Seattle, WA 98174, not outweighed by countervailing actors begin one advertisement by (206) 220–4480. benefits to consumers or competition stating ‘‘Wanna have some fun? Mix hot and is not reasonably avoidable by music, cool people, [a] big boat and a SUPPLEMENTARY INFORMATION: Pursuant consumers. As a result, the complaint great German beer.’’ Unfortunately, the to Section 6(f) of the Federal Trade alleges that respondent’s practice was advertisement does not disclose that Commission Act, 38 Stat. 721, 15 U.S.C. an unfair act or practice. consuming alcohol while boating poses 46 and Section 2.34 of the Commission’s The Commission has substantial a heightened danger not only to the boat Rules of Practice (16 CFR 2.34), notice concern about advertising that depicts operator, but also to passengers. It also is hereby given that the above-captioned conduct that poses a high risk to health fails to disclose that such behavior may consent agreement containing a consent and safety. As a result, the Commission violate applicable Federal boating laws.2 order to cease and desist, having been will closely scrutinize such Second, as evidenced by the actors and filed with and accepted, subject to final advertisements in the future. the language portrayed in the approval, by the Commission, has been The consent order contains provisions advertisement, I believe that the placed on the public record for a period designed to remedy the violations message is targeted at a youthful of sixty (60) days. The following charged. Part I of the order prohibits audience. Accordingly, it can be Analysis to Aid Public Comment respondent from future dissemination of justifiably inferred that a reasonable describes the terms of the consent the television advertisements attached youthful consumer could easily be agreement, and the allegations in the to the complaint as Exhibits A and B, or deceived by not appreciating the danger complaint. An electronic copy of the of any other advertisement that a) of imitating the behavior featured in the full text of the consent agreement depicts a person having consumed or television advertisements. package can be obtained from the FTC consuming alcohol on a boat while For these reasons, I would find that Home Page (for August 5, 1998), on the engaging in activities that pose a the Beck’s advertisements were World Wide Web, at ‘‘http:// substantial risk of serious injury from www.ftc.gov/os/actions97.htm.’’ A falling overboard or b) depicts activities 1 See Cliffdale Associates, Inc., 103 F.T.C. 110, paper copy can be obtained from the that would violate 46 U.S.C. 2302(c). 176 (1984) Appeal dismissed sub nom., Kovan v. FTC Public Reference Room, Room H– The cited statute, 46 U.S.C. 2302(c), FTC, No. 84–5337 (11th Cir. Oct. 10, 1984) 130, Sixth Street and Pennsylvania makes it illegal to operate a vessel under (Deception Statement). Avenue, N.W., Washington, D.C. 20580, 2 This problem has become so serious that the the influence of alcohol or illegal drugs. U.S. Coast Guard has recently launched a new either in person or by calling (202) 326– The remaining parts of the order campaign to better inform the public of the dangers 3627. Public comment is invited. Such contain standard record keeping (Part of mixing boating and alcohol. comments or views will be considered Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43183 by the Commission and will be available innovative channel—the Internet. FAS’s has previously rejected demands that it for inspection and copying at its threatened action against Chrysler is a change its allocation system and principal office in accordance with per se illegal group boycott. In United publicly lauded Dave Smith Mothers. Section 4.9(b)(6)(ii) of the Commission’s States v. General Motors, 384 U.S. 127 See ‘‘Chrysler Corp. Will Let Dealers Rules of Practice (16 CFR 4.9(b)(6)(ii)). (1966), the Supreme Court held per se Shoot It Out in Cyberspace,’’ illegal a comparable dealer cartel in Los Analysis of Proposed Consent Order To Automotive News, p. 1, January 27, Angeles that sought to prevent other Aid Public Comment 1997. Indeed, Chrysler’s Vice President area dealers from selling automobiles of Sales and Marketing has flatly stated The Federal Trade Commission has through discount brokers. Since General that Chrysler believes the best way to accepted a proposed consent order from Motors, the Supreme Court has twice increase its sales penetration is to Fair Allocation System, Incorporated cited its per se condemnation of dealer provide dealers as much product as they (‘‘FAS’’). FAS is an organization of cartels with approval. See Continental can sell, no matter where the customer twenty-five automobile dealerships from T.V., Inc. v. GTE Sylvania Inc., 433 U.S. comes from. See ‘‘Chrysler VP Has five Northwest states that was formed to 36, 58 n. 28(1977); Business Electronics Calming Effect,’’ Automotive News, p. address dealer concerns over the v. Sharp Electronics, 485 U.S. 717, 734 28, February 10, 1997. Even if Chrysler marketing practices of automobile n. 5 (1988). Such dealer cartels are had acceded to the boycotters’ demands, manufacturers. In particular, FAS ‘‘characteristically likely to result in however, that would not have justified members were concerned about an predominantly anticompetitive effects,’’ a horizontal boycott by the dealers. automobile dealership—Dave Smith Northwest Wholesale Stationers v. The proposed consent order would Motors of Kellogg, Idaho—which was Pacific Stationery & Printing Co., 472 prohibit FAS from participating in, attracting customers from around the U.S. 284, 295 (1985), because they aim facilitating, or threatening any boycott Northwest and taking substantial sales to limit competition while producing no of or concerted refusal to deal with any from FAS members by selling cars for plausible efficiencies. automobile manufacturer or consumer. low prices and marketing them on the Even where an agreement otherwise There is nothing in the proposed order, Internet. appears to fall in a category traditionally however, that would prohibit FAS from According to the complaint, because analyzed under a per se rule, a more informing automobile manufacturers of these concerns, the members of FAS extensive, rule-of-reason analysis may about the views and opinions of FAS collectively attempted to force Chrysler be necessary if there are plausible members. to change its vehicle allocation system. efficiency justifications for the conduct. The proposed consent order has been Chrysler allocates vehicles based on the Broadcast Music, Inc. v. Columbia placed on the public record for sixty dealer’s total sales; FAS members Broadcasting System, Inc., 441 U.S. 1 (60) days for reception of comments wanted Chrysler to allocate vehicles (1979). Here, however, there appear to from interested persons. Comments based on the expected number of sales be no plausible efficiencies that would from a dealer’s local area, which would received during this period will become justify the dealers’ conduct. Even if part of the public record. After sixty (60) have substantially reduced the number there were reason to believe that Dave of cars available to a dealership like days, the Commission will again review Smith Motors, or similarly operated the agreement and the comments Dave Smith Motors that drew customers 1 dealerships, were free-riding on the received, and will decide whether it from a wider geographic area. According efforts of more traditional dealers, no to the complaint, the members of FAS should withdraw from the agreement or boycott would be needed to deal with make final the agreement’s proposed threatened to refuse to sell certain the problem. Manufacturers have strong order. Chrysler vehicles and to limit the incentives to prevent free-riding by a The purpose of this analysis is to warranty service they would provide to few of their dealers at the expense of the facilitate public comment on the particular customers unless Chrysler rest, and can be expected to be proposed order. It is not intended to changed its allocation system so as to responsive to complaints from their constitute an official interpretation of disadvantage dealers that sold large dealers acting individually if the free- the agreement containing the proposed quantities of vehicles outside of their riding concerns are genuine. In the consent order to modify in any way its local geographic areas. absence of an efficiency justification terms. The compliant charges that FAS’s that plausibly explains why concerted agreements or attempts to agree with its action is necessary, extensive searches By direction of the Commission. dealer members to coerce Chrysler for and investigations of justifications Benjamin I. Berman, violate Section 5 of the FTC Act, as for such conduct would be Acting Secretary. amended, 15 U.S.C. 45. According to the unwarranted, and would only add a [FR Doc. 98–21613 Filed 8–11–98; 8:45 am] complaint, FAS members constitute a layer of complication and delay. BILLING CODE 6750±01±M substantial percentage of the Chrysler, In this case, the absence of a Plymouth, Dodge, Jeep and Eagle justification is especially clear. Chrysler dealerships in eastern Washington, Idaho, and western Montana, and FAS’s 1 ‘‘Free-rider’’ concerns may arise where two DEPARTMENT OF HEALTH AND threats would have harmed competition distributors sell the same product, but provide HUMAN SERVICES and consumers in those areas. In different levels of service in connection with the sale of that product. For example, one distributor Office of the Secretary particular, FAS’s efforts would have may have a full-service showroom and the other deprived consumers of local access to may sell out of a warehouse that offers no service. Findings of Scientific Misconduct certain Chrysler models and to warranty Consumers may visit the showroom, learn all they need to know about the product, and then purchase service, and would have reduced the produce from a ‘‘no-service’’ discounter. The AGENCY: Office of the Secretary, HHS. competition among automobile problem is that over time the full-service distributor ACTION: Notice. dealerships, including rivalry based on may lose its incentive or financial ability to provide price or via the Internet. the services, to the detriment of both the SUMMARY: Notice is hereby given that manufacturer and the consumers who value those The goal of the boycott was to limit services. Free-rider concerns generally do not exist the Office of Research Integrity (ORI) the sales of a car dealer that sells cars if the full-service distributor is compensated for its has made a final finding of scientific at low prices and via a new and services. misconduct in the following case: 43184 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Benjamin S. Pender, Medical No scientific publications were received within 60 days of the date of University of South Carolina: Based required to be corrected as part of this this publication. upon a report from the Medical Agreement. The abstract was withdrawn Proposed Projects University of South Carolina (MUSC), before presentation. information obtained by the Office of FOR FURTHER INFORMATION CONTACT: 1. A National Registry for Research Integrity (ORI) during its Acting Director, Division of Research Surveillance of Non-Occupational oversight review, and Mr. Pender’s own Investigations, Office of Research Exposures to Human Immunodeficiency admission, ORI found that Mr. Pender, Integrity, 5515 Security Lane, Suite 700, Virus and Post-Exposure Antiretroviral former graduate student, Medical Rockville, MD 20852, (301) 443–5330. Therapy—New—The National Center Science Training Program, MUSC, Chris B. Pascal, for HIV, STD, and TB Prevention, engaged in scientific misconduct in Division of HIV/AIDS Prevention, Acting Director, Office of Research Integrity. biomedical research supported by a Surveillance, and Epidemiology grant from the National Institute of [FR Doc. 98–21589 Filed 8–11–98; 8:45 am] proposes to develop and implement a General Medical Sciences (NIGMS), BILLING CODE 4160±17±P surveillance registry in the United National Institutes of Health (NIH). Mr. States which will provide data for Pender cooperated with MUSC’s analysis and technical reports on the DEPARTMENT OF HEALTH AND investigation. frequency and types of nonoccupational HUMAN SERVICES Specifically, Mr. Pender presented to exposures to HIV, offers and acceptance the MUSC Shock Research Group (1) a Centers for Disease Control and rates of antiretroviral therapy to attempt blank autoradiographic film, which he Prevention interruption of transmission and clinical represented to be a Northern blot, as course and outcomes of persons with evidence that he had conducted an documented HIV exposure. experiment that he had not done, and [INFO±98±25] Studies of antiretroviral agents for (2) a photographic slide representing a Proposed Data Collections Submitted preventing HIV infection in health care Western blot analysis that he had for Public Comment and workers and from pregnant women to falsified by using a computer to Recommendations their infants have shown antiretroviral duplicate two sets of bands to therapy to be efficacious. As a result of misrepresent oligonucleotide treatments In compliance with the requirement these findings, the Public Health Service at different times and by of section 3506(c)(2)(A) of the has recommended the use of misrepresenting the identities of two Paperwork Reduction Act of 1995 for antiretroviral drugs to reduce HIV bands in one of the sets. Also, Mr. opportunity for public comment on transmission among those exposed in Pender falsified data from experiments proposed data collection projects, the the work place and from HIV-infected with thromboxane B2 and tumor Centers for Disease Control and women to their infants. These findings necrosis factor alpha that were Prevention (CDC) will publish periodic may not be directly relevant to published and distributed in an abstract summaries of proposed projects. To nonoccupational settings. Hence, further entitled ‘‘Antisense Oligonucleotide to request more information on the studies are needed before concluding G Protein Inhibits Endotoxin Stimulated proposed projects or to obtain a copy of that use of antiretroviral agents Thromboxane (Tx) B2 production’’ the data collection plans and following nonoccupational exposures is (Supplement to Shock 7:20, 1997). This instruments, call the CDC Reports clearly effective in preventing HIV data also was reported as Figure 4 of a Clearance Officer at (404) 639–7090. infection. The surveillance system will submitted but unpublished and Comments are invited on: (a) Whether provide data to address those issues. withdrawn manuscript and in the the proposed collection of information The surveillance system will be a Progress Report for an NIH grant. is necessary for the proper performance voluntary and anonymous system in Mr. Pender has accepted the ORI of the functions of the agency, including which all health care providers will be finding and has entered into a Voluntary whether the information shall have encouraged to report by phone, fax, Exclusion Agreement with ORI in which practical utility; (b) the accuracy of the mail, or website 24 hours a day about he has voluntarily agreed, for the three agency’s estimate of the burden of the all persons to whom they have offered (3) year period beginning July 31, 1998: proposed collection of information; (c) antiretroviral therapy after a (1) To exclude himself from any ways to enhance the quality, utility, and nonoccupational exposure to HIV. Data contracting or subcontracting with any clarity of the information to be will be collected using an assigned agency of the United States Government collected; and (d) ways to minimize the unique registry number. During the and from eligibility for, or involvement burden of the collection of information initial contact, patient consent will be in, nonprocurement transactions (e.g., on respondents, including through the ascertained, data will be collected on grants and cooperative agreements) of use of automated collection techniques the characteristics of the exposure the United States Government as or other forms of information event, knowledge of HIV status of the defined in 45 CFR part 76 (Debarment technology. Send comments to Seleda source patient, and treatment decision Regulations); and Perryman, CDC Assistant Reports of the provider for patients whose HIV (2) To exclude himself from serving in Clearance Officer, 1600 Clifton Road, exposure has been documented. Follow- any advisory capacity to the Public MS–D24, Atlanta, GA 30333. Written up information will be requested at 4– Health Service (PHS), including but not comments should be received within 60 6 weeks, 6 months, and 12 months post limited to service on any PHS advisory days of this notice. Comments regarding prescription of post exposure therapy. committee, board, and/or peer review this information collection are best Estimated cost to respondents and committee, or as a consultant. assured of having their full effect if government is $200,000.00 a year. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43185

Average bur- Number of re- Number of re- den per Total burden Respondents spondents sponses per response (in (in hrs) respondent hrs)

Health Care Providers ...... 100 5 .30 150

Total ...... 150

2. A National Registry for state and local tuberculosis control System. The old reports, CDC 72.16 and Surveillance of Non-Occupational programs receiving federal cooperative CDC 72.21, which have been submitted Exposures to Human Immunodeficiency agreement funding through (DTBE). The at least in some form by the respondents Virus and Post-Exposure Antiretroviral revised reports phase out two twice- since 1961, are tabulated by hand. Therapy—New—National Center for yearly program management reports in Three program management reports in HIV, STD, and TB Prevention—To the Tuberculosis Statistics and Program the previous series already have been ensure the elimination of tuberculosis in Evaluation Activity (OMB 0920–0026): the United States, key program activities Contact Follow-up (CDC 72.16) and phased out. They are Bacteriologic such as finding tuberculosis infections Completion of Preventive Therapy (CDC Conversion of Sputum (CDC 72.14), in recent contacts of cases and in other 72.21). The revised reports, which are Case Register (CDC 72.15), and Drug persons likely to be infected, and being submitted for an OMB approval Therapy (CDC 72.20). These three providing preventive therapy, must be outside of OMB 0920–0026, have reports have been superseded by monitored. The Division of Tuberculosis several improvements over the old integrated reporting in Tuberculosis Elimination (DTBE), is implementing reports for the respondents and for Statistics and Program Evaluation two revised program management DTBE, such as the emphasis on Activity (OMB 0920–0026). The reports for annual submission: preventive therapy outcomes, the focus discontinuation of these reports has Aggregate report of follow-up for on high-priority target populations resulted in an estimated reduction in contacts of tuberculosis, and Aggregate vulnerable to tuberculosis, and the annual response burden of 159 report of screening and preventive programmed electronic report hours. The cost to the respondent is therapy for tuberculosis infection. The generation and submission through the $6,324. respondents for these reports are the 68 Tuberculosis Information Management

Average bur- Number of re- Number of re- den per Total burden Report spondents sponses per response (in (in hrs.) respondent hrs.)

Aggregate report of follow-up for contacts of tuberculosis ...... 68 1 2.5 170 Aggregate report of screening and preventive therapy for TB infection ...... 68 1 2.5 170

Total ...... 340

3. Provider Survey of Partner diagnosed, including acute or urgent appropriately. Without this information, Notification and Partner Management care, emergency room, or primary and CDC will have little information about Practices following Diagnosis of a ambulatory care clinics. The existing STD treatment, reporting, and partner Sexually-Transmitted Disease (0920– literature contains descriptive studies of management services provided by 0431)—Extension—The National Center partner notification in public health physicians practicing in the US. With for HIV, STD, and TB prevention, clinics, but no baseline data exist as to changes underway in the manner in Division of STD Prevention, CDC is the practices of different physician which medical care is delivered and the proposing to conduct a national survey specialties across different practice move toward managed care, clinical of physician’s partner management settings. functions typically provided in the practices following the diagnosis of a The CDC proposes to fill that gap public health sector will now be sexually-transmitted disease. Partner through a national sample survey of required of private medical providers. notification, a technique for controlling 7300 office managers and physicians At present, CDC does not have sufficient the spread of sexually-transmitted who treat patients with STDs in a wide information to guide future STD control diseases is one of the five key elements variety of clinical settings; a 70% efforts in the private medical sector. of a long standing public health strategy completion rate is anticipated (n=5110 Data collection will involve a mail to control sexually-transmitted surveys). This survey will provide the survey of practicing physicians. The infections in the US. At present, there baseline data necessary to characterize questionnaire mailing will be followed is very little knowledge about partner infection control practices, especially by a reminder postcard after one week, notification practices outside public partner notification practices, for a second mailing to non-respondents at health settings despite the fact that most syphilis, gonorrhea, HIV, and chlamydia three weeks, telephone follow-up with STD cases are seen in private health and the contextual factors that influence non-respondents at five weeks, and a care settings. No descriptive data those practices. Findings from the final certified mailing of the survey to currently exist that allow the Centers for proposed national survey of office non-respondents at eight weeks. A study Disease Control and Prevention to managers and physicians will assist specific computerized tracking and characterize partner notification CDC to better focus STD control and reporting system will monitor all phases practices among the broad range of partner notification program efforts and of the study. Receipt of the completed clinical practice settings where STDs are to allocate program resources questionnaire or a refusal will be logged 43186 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices into this computerized control system to amounts of $0, $15, and $25. The re- rate of $25/hour, the estimated total cost ensure that respondents who return the submission of the full information burden for office managers to answer survey are not contacted with collection package will include a report Section 1 is $10,650. Based on an reminders. from the pilot including a detailed average pay rate of $70/hour, the The current OMB approval for this report of the response rates overall and estimated cost burden for physicians is collection covers the pilot only and break down by use of the various $94,640. Thus the total cost burden for expires on October 31, 1998. The pilot response rates. the data collection effort is estimated to will vary the respondent payment to Estimated cost to respondents and be $105,290. equal subsections of the sample using government based on an average pay

Number of re- Average bur- Respondents Sections Number of re- sponses/re- den/response Total burden spondents spondent (in hrs.) (in hrs.)

Office Managers ...... 1 7300 1 .08 584 Physicians ...... 2±4 5110 3 .03 460 Physicians ...... 5±10 5110 6 .20 6132

Total ...... 7176

Dated: August 4, 1998. OMB No.: 0980–0160. data in the PPR to develop an annual Charles W. Gollmar, Description: This information report to the President, the Congress, Acting Associate Director for Policy, Planning collection is a reporting by Protection & and the National Council on Disability, and Evaluation, Centers for Disease Control Advisory (P&A) systems in each State. as required by Section 107(c) of the and Prevention (CDC). Using this reporting format, the P&A Developmental Disabilities Assistance [FR Doc. 98–21581 Filed 8–11–98; 8:45 am] systems describe their program and Bill off Rights Act (42 U.S.C., 6000 BILLING CODE CODE 4163±18±P performance during the previous fiscal et seq.). Additionally, the data in the year in the pursuit of their effort under reports will provide the Department Part C of the Developmental Disabilities with an overview for good management DEPARTMENT OF HEALTH AND Assistance and Bill of Rights Act (42 HUMAN SERVICES of the program, and will enable the U.S.C., 6000 et seq.) to protect the civil Department to respond to Congressional Administration for Children and and human rights of persons with requests. Families developmental disabilities. This program performance report (PPR) is Respondents: State, Local, or Tribal Government. Proposed Information Collection required by Section 107(b) of the Activity; Comment Request Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C., 6000 Proposed Project et seq.). Title: Developmental Disabilities The PPR is submitted by each P&A Protection & Advocacy Program system to the Department of Health and Performance Report. Human Services, which will use the

ANNUAL BURDEN ESTIMATES

Number of Average Number of responses burden Total bur- Instrument respondents per re- hours per den hours spondent response

Annual Program Performance Report ...... 56 1 44 2,464

Estimated Total Annual Burden Management Services, 370 L’Enfant information to be collected; and (d) Hours: 2,464. Promenade, SW, Washington, DC 20447, ways to minimize the burden of the In compliance with the requirements Attn: ACF Reports Clearance Officer. All collection of information on of Section 3506(c)(2)(A) of the requests should be identified by the title respondents, including through the use Paperwork Reduction Act of 1995, the of the information collection. of automated collection techniques or Administration for Children and The Department specifically requests other forms of information technology. Families is soliciting public comment comments on: (a) Whether the proposed Consideration will be given to on the specific aspects of the collection of information is necessary comments and suggestions submitted information collection described above. for the proper performance of the within 60 days of this publication. Copies of the proposed collection of functions of the agency, including Dated: August 6, 1998. information can be obtained and whether the information shall have Bob Sargis, comments may be forwarded by writing practical utility; (b) the accuracy of the Acting Reports Clearance Officer. to the Administration for Children and agency’s estimate of the burden of the Families, Office of Information Services, proposed collection of information; (c) [FR Doc. 98–21568 Filed 8–11–98; 8:45 am] Division of Information Resource the quality, utility, and clarity of the BILLING CODE 4184±01±M Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43187

DEPARTMENT OF HEALTH AND compiled by HIC number, member Employer Data and Information Set HUMAN SERVICES month contribution, and a flag to (HEDIS) and the Consumer Assessment indicate if the member was counted in of Health Plans Study (CAHPS). The Health Care Financing Administration the rate’s numerator. The system will system will contain information on collect rate information on categories recipients of Medicare Part A and Part Privacy Act of 1974; System of such as the following: B services who are enrolled in health Records • ‘‘Use of Services’’ measures such as plans. The total number of current AGENCY: Department of Health and the frequency of selected procedures enrollees is approximately 5 million. Human Services (HHS), Health Care (e.g., percutaneous transluminal We expect this number to grow over Financing Administration (HCFA). coronary artery angioplasty, time as beneficiaries move from the ACTION: Notice of New System of prostatectomy, coronary artery bypass original Medicare fee-for-service Records. with graft, hysterectomy, program. cholecystectomy, cardiac HEDIS reflects a joint effort of public SUMMARY: In accordance with the catheterization, reduction of fracture of and private purchasers, consumers, requirements of the Privacy Act of 1974, the femur, total hip and knee labor unions, health plans, and we are proposing to establish a new replacement, partial excision of the measurement experts to develop a system of records, called ‘‘Health Plan large intestine, carotid endarterectomy); comprehensive set of performance Management System (HPMS),’’ HHS/ percentage of members receiving measures for Medicare, Medicaid, and HCFA/CHPP, No. 09–70–4004. We have inpatient, day/night and ambulatory commercial populations enrolled in provided background information about mental health and chemical dependency managed care plans. HEDIS measures the proposed new system in the services; readmission for chemical eight aspects of health care: SUPPLEMENTARY INFORMATION section dependency, and specified mental effectiveness of care; access/availability below. Although the Privacy Act health disorders. of care, satisfaction with the experience requires only that the ‘‘routine uses’’ • ‘‘Effectiveness of Care’’ measures of care, health plan stability, use of portion of the system be published for such as breast cancer screening, beta services, cost of care, informed health comment, HCFA invites comments on blocker treatment after a heart attack, care choices, and health plan all portions of this notice. eye exams for people with diabetes, and descriptive information. In 1997, HCFA DATES: HCFA filed a new system report follow-up after hospitalization for is requiring reporting of a number of with the Chairman of the Committee on mental illness. performance measures from HEDIS Government Reform and Oversight of • ‘‘Member Satisfaction’’ measures relevant to the Medicare managed care the House of Representatives, the related to quality, access, and general population. The HEDIS data is subject to Chairman of the Committee on satisfaction. audit, to ensure that plans submit • Governmental Affairs of the Senate, and ‘‘Functional Status’’ measures accurate and complete data. Another the Administrator, Office of Information which are patient centered and track aspect of the audit is to assess the and Regulatory Affairs, Office of actual outcomes or results of care, reasonableness of the HEDIS measures. Management and Budget (OMB), on July addressing both physical and mental For example, if all or most health plans 31,1998. well-being over time. have problems with a particular To ensure that all parties have The information from HPMS will be measure, the problem could be with the adequate time in which to comment, the augmented by being linked to other measure, not the plans. new system of records, including HCFA data and other administrative Included in HEDIS is a functional routine uses, will become effective 40 data to provide validation and greater status measure which tracks both days from the publication of this notice analytic capacity. The HPMS will be physical health and mental health status or from the date it was submitted to used to: over a 2-year period through a self- • OMB and the Congress, whichever is Develop and disseminate summary administered instrument in which the later, unless HCFA receives comments information required by the Balanced beneficiary indicates whether his/her which require alteration to this notice. Budget Act of 1997 that will inform health status has improved, stayed the beneficiaries and the public of same, or deteriorated. The measure is ADDRESSES: The public should address risk adjusted for co-morbid conditions, comments to Director, Division of indicators of health plan performance to help beneficiaries choose among health income, race, education, social support, Freedom of Information & Privacy, age, and gender. It will be used to Health Care Financing Administration, plans. The information will include plan-to-plan comparisons of benefits compare how well plans care for 7500 Security Boulevard, C2–01–11, seniors. It reflects the belief that high Baltimore, Maryland 21244–1850. and co-payments supplemented with consumer satisfaction information and quality health care can either improve Comments received will be available for or at least slow the rate of decline in review at this location, by appointment, plan performance data. • Support quality improvement senior members’ ability to lead active Monday through Friday 9 a.m.–3 p.m., activities. Summary data will be useful and independent lives. eastern time zone. for health plans’ internal quality In concert with the Agency for Health FOR FURTHER INFORMATION CONTACT: Ms. improvement, as well as to HCFA and Care Policy and Research, HCFA Lori Robinson, Health Care Financing Peer Review Organizations in sponsored the development of a Administration, Center for Health Plans monitoring and evaluating the care Medicare specific version of the CAHPS and Providers, 7500 Security Boulevard, provided by health plans. consumer satisfaction survey. The N3–09–16, Baltimore, Maryland 21244– • Conduct research and survey will collect information about 1850. Her telephone number is (410) demonstrations addressing managed Medicare enrollees’ satisfaction, access, 786–1826. care quality, access, and satisfaction and quality of care within managed care SUPPLEMENTARY INFORMATION: The issues. plans. Beginning in 1997, HCFA is Health Plan Management System is a • Provide guidance for program requiring all Medicare contracting plans data file containing rates for selected management and policy development. to participate in an independent third performance measures for each HPMS is derived from population- party administration of an annual Medicare health plan. The data are based tools such as Health Plan member satisfaction survey. 43188 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

All performance measures are subject required by the Balanced Budget Act of OMB Circular No. A–130 (revised), to modification as new performance 1997 that will inform beneficiaries and Appendix III, Security of Federal measurement sets are developed with a the public of indicators of health plan Automated Information Systems which stronger focus on outcomes and chronic performance to help beneficiaries sets forth guidelines for security plans disease issues, including patient choose among health plans, support for automated information systems in satisfaction and quality of life measures quality improvement activities within Federal agencies; relevant to specific diseases. the plans, monitor and evaluate care (2) Remove or destroy the information The Privacy Act permits us to disclose provided by health plans; provide that allows the subject individual(s) to information without the consent of guidance to program management and be identified at the earliest time at individuals for ‘‘routine uses’’—that is, policies, and provide a research data which removal or destruction can be disclosures that are compatible with the base for HCFA and other researchers. accomplished consistent with the purpose for which we collected the purpose of the request; information. The proposed routine uses ROUTINE USES OF RECORDS MAINTAINED IN THE (3) Refrain from using or disclosing SYSTEM, INCLUDING CATEGORIES OF USERS AND the information for any purpose other in the new system meet the THE PURPOSES OF SUCH USES: compatibility criteria since the than the stated purpose under which the These routine uses specify additional information is collected to produce information was disclosed, and circumstances under which HCFA may estimates of health care use and quality, (4) Make no further uses or disclosure release information from the Health and determinants thereof, by the aged of the information except: Plan Management System without the and disabled enrolled in group health (i) To prevent or address an consent of the individual to whom such plans. We anticipate the disclosures emergency directly affecting the health information pertains. Each proposed under the routine uses will not result in or safety of an individual; disclosure of information under these any unwarranted adverse effects on (ii) For use on another project under routine uses will be evaluated to ensure personal privacy. the same conditions, provided HCFA that the disclosure is legally has authorized the additional use(s) in Dated: July 31, 1998. permissible, including but not limited to writing; or Nancy-Ann Min DeParle, ensuring that the purpose of the (iii) When required by law; Administrator, Health Care Financing disclosure is compatible with the (e) Secure a written statement or Administration. purpose for which the information was agreement from the prospective 09–70–4004 collected. Also, HCFA will require each recipient of the information whereby the prospective recipient of such prospective recipient attests to an SYSTEM NAME: information to agree in writing to understanding of and willingness to Health Plan Management System certain conditions to ensure the abide by the foregoing provisions and (HPMS), HHS/HCFA/CHPP. continuing confidentiality and security, any additional provisions that HCFA SECURITY CLASSIFICATION: including physical safeguards of the deems appropriate in the particular information. More specifically, as a circumstances; and None. condition of each disclosure under these (f) Determine whether the disclosure SYSTEM LOCATION: routine uses, HCFA will, as necessary constitutes a computer ‘‘matching HCFA Data Center, 7500 Security and appropriate: program’’ as defined in 5 U.S.C. Boulevard, North Building, First Floor, (a) Determine that no other Federal 552a(a)(8). If the disclosure is Baltimore, Maryland 21244–1850. statute specifically prohibits disclosure determined to be a computer ‘‘matching of the information; program,’’ the procedures for matching CATEGORIES OF INDIVIDUALS COVERED BY THE (b) Determine that the use or agreements as contained in 5 U.S.C. SYSTEM: disclosure does not violate legal 552a(o) must be followed. Recipients of Medicare Part A limitations under which the information Disclosure may be made: (Hospital Insurance) and Part B was provided, collected, or obtained; 1. To a congressional office from the (supplementary medical insurance) (c) Determine that the purpose for record of an individual in response to services who are enrolled in Medicare which the disclosure is to be made; an inquiry from the congressional office health plans. (1) Cannot reasonably be made at the request of that individual. accomplished unless the information is 2. To the Bureau of Census for use in AUTHORITY FOR MAINTENANCE OF THE SYSTEM: provided in individually identifiable processing research and statistical data Authority for maintenance of the form; directly related to the administration of system is given under section 1875 of (2) Is of sufficient importance to programs under the Social Security Act. the Social Security Act (42 U.S.C. warrant the effect on or the risk to the 3. To the Department of Justice, to a 1395ll), entitled Studies and privacy of the individual(s) that court or other tribunal, or to another Recommendations; section 1121 of the additional exposure of the record(s) party before such tribunal, when Social Security Act (42 U.S.C. 1121), might bring; and (a) HHS, or any component thereof; or entitled Uniform Reporting System for (3) There is a reasonable probability (b) Any HHS employee in his or her Health Services Facilities and that the purpose of the disclosure will official capacity; or Organizations; and section 1876 of the be accomplished; (c) Any HHS employee in his or her Social Security Act (42 U.S.C. 1395mm), (d) Require the recipient of the individual capacity where the entitled Payments to Health information to: Department of Justice (or HHS where it Maintenance Organizations and (1) Establish reasonable is authorized to do so) has agreed to Competitive Medical Plans. administrative, technical, and physical represent the employee; or safeguards to prevent unauthorized (d) The United States or any agency PURPOSES: access, use or disclosure of the record or thereof where HHS determines that the To collect and maintain information any part thereof. The physical litigation is likely to affect HHS or any on Medicare beneficiaries enrolled in safeguards shall provide a level of of its components, Medicare Health Plans in order to security that is at least the equivalent of is a party to litigation or has an interest develop and disseminate information the level of security contemplated in in such litigation, and HHS determines Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43189 that the use of such records by the aspect of a HCFA-administered health POLICIES AND PRACTICES FOR STORING, Department of Justice, the tribunal, or benefits program, or to a grantee of a RETRIEVING, ACCESSING, RETAINING, AND the other party is relevant and necessary HCFA-administered grant program, DISPOSING OF RECORDS IN THE SYSTEM: to the litigation and would help in the which program is or could be affected STORAGE: effective representation of the by fraud or abuse, for the purpose of All records are stored in file folders, governmental party or interest provided, preventing, deterring, discovering, magnetic tapes, or computer disks. however, that in each case HHS detecting, investigating, examining, determines that such disclosure is prosecuting, suing with respect to, RETRIEVABILITY: compatible with the purpose for which defending against, correcting, The records are retrieved by health the records were collected. remedying, or otherwise combating such insurance claim number. 4. To an individual or organization for fraud or abuse in such programs. a research, demonstration, evaluation, 13. To another Federal agency or to an SAFEGUARDS: epidemiological or health care quality instrumentality of any governmental For computerized records, safeguards improvement project related to the jurisdiction within or under the control prevention of disease or disability, or established in accordance with of the United States, including any state Department standards and National the restoration or maintenance of health. or local government agency, for the 5. To a contractor for the purpose of Institute of Standards and Technology purpose of preventing, deterring, guidelines (e.g., security codes) will be collating, analyzing, aggregating or discovering, detecting, investigating, otherwise refining or processing records used, limiting access to authorized examining, prosecuting, suing with personnel. System securities are in this system or for developing, respect to, defending against, correcting, modifying and/or manipulating established in accordance with HHS, remedying, or otherwise combating such Information Resource Management automated information systems (AIS) fraud or abuse in such health benefits ι software. Data would also be disclosed (IRM) Circular 10, Automated programs funded in whole or in part by Information Systems Security Program; to contractors incidental to consultation, Federal funds. programming, operation, user and HCFA Automated Information 14. To any entity that makes payment Systems (AIS) Guide, Systems Securities assistance, or maintenance for AIS or for or oversees administration of health telecommunications systems containing Policies, and OMB Circular No. A-130 care services, for the purpose of (revised), Appendix III. or supporting records in the system. preventing, deterring, discovering, 6. To a Peer Review Organization for detecting, investigating, examining, RETENTION AND DISPOSAL: health care quality improvement prosecuting, suing with respect to, projects conducted in accordance with The records are maintained with defending against, correcting, identifiers as long as needed for its contract with HCFA. remedying, or otherwise combating 7. To state Medicaid agencies program research. fraud or abuse against such entity or the pursuant to agreements with the program or services administered by SYSTEM MANAGER(S) AND ADDRESS: Department of Health and Human such entity, provided: Services for determining Medicaid and Director, Center for Health Plans and (i) Such entity enters into an Medicare eligibility of recipients of Providers, Health Care Financing agreement with HCFA to share assistance under titles IV, XVIII, and Administration, 7500 Security knowledge and information regarding XIX of the Social Security Act, and for Boulevard, Baltimore, Maryland 21244– actual or potential fraudulent or abusive the complete administration of the 1850. practices or activities regarding the Medicaid program. NOTIFICATION PROCEDURE: 8. To an agency of a state delivery or receipt of health care Government, or established by state law, services, or regarding securing payment For purpose of access, the subject for purposes of determining, evaluating or reimbursement for health care individual should write the system and/or assessing cost, effectiveness, services, or any practice or activity that, manager, who will require the system and/or the quality of health care if directed toward a HCFA-administered name, health insurance claim number, services provided in the state. program, might reasonably be construed and, for verification purposes, name, 9. To another Federal or state (1) To as actually or potentially fraudulent or address, date of birth, and sex to contribute to the accuracy of HCFA’s abusive; ascertain whether or not the proper payment of Medicare health (ii) Such entity does, on a regular individual’s record is in the system. benefits, or (2) as necessary to enable basis, or at such times as HCFA may RECORD ACCESS PROCEDURE: such agency to fulfill a requirement of request, fully and freely share such a Federal statute or regulation, or a state knowledge and information with HCFA, Same as notification procedures. statute or regulation that implements a or as directed by HCFA, with HCFA’s Requestors should also reasonably health benefits program funded in contractors; and specify the record contents being whole or in part with Federal funds. (iii) HCFA determines that it may sought. (These access procedures are in 10. To other Federal agencies or states reasonably conclude that the knowledge accordance with the Department to support the administration of other or information it has received or is regulations 45 CFR 5b.5(a)(2).) Federal or state health care programs, if likely to receive from such entity could CONTESTING RECORD PROCEDURES: funded in whole or in part by Federal lead to preventing, deterring, funds. discovering, detecting, investigating, Contact the system manager named 11. To the Social Security examining, prosecuting, suing with above, and reasonably identify the Administration for its assistance in the respect to, defending against, correcting, record and specify the information to be implementation of HCFA’s Medicare remedying, or otherwise combating contested. State the corrective action and Medicaid programs. fraud or abuse in the Medicare, sought and the reasons for the 12. To a HCFA Contractor, including Medicaid or other health benefits correction with supporting justification. but not limited to fiscal intermediaries program administered by HCFA or (These procedures are in accordance and carriers under title XVIII of the funded in whole or in part by Federal with Department regulation 45 CFR Social Security Act, to administer some funds. 5b.7.) 43190 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

RECORD SOURCE CATEGORIES: information collection proposal; (2) the Dated: August 7, 1998. The identifying information contained office of the agency to collect the Wayne Eddins, in these records is obtained from the information; (3) the OMB approval Director, IRM Policy and Management health plans (which obtained the data number, if applicable; (4) the Division. from the individual concerned) or the description of the need for the [FR Doc. 98–21701 Filed 8–11–98; 8:45 am] individuals themselves. Also, these data information and its proposed use; (5) BILLING CODE 4210±27±M will be linked with HCFA the agency form number, if applicable; administrative data, such as claims and (6) what members of the public will be enrollment data. affected by the proposal; (7) how DEPARTMENT OF THE INTERIOR frequently information submissions will SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS be required; (8) an estimate of the total [NV±930±1430±01; N±62752] OF THE ACT: number of hours needed to prepare the None. information submission including Notice of Proposed Withdrawal and Opportunity for Public Meeting; [FR Doc. 98–21502 Filed 8–11–98; 8:45 am] number of respondents, frequency of response, and hours of response; (9) Nevada BILLING CODE 4120±03±P whether the proposal is new, an AGENCY: Bureau of Land Management, extension, reinstatement, or revision of Interior. an information collection requirement; ACTION: Notice. DEPARTMENT OF HOUSING AND and (10) the names and telephone URBAN DEVELOPMENT numbers of an agency official familiar SUMMARY: The U.S. Fish and Wildlife [Docket No. FR±4370±N±02] with the proposal and of the OMB Desk Service proposes to withdraw 5,360 Officer for the Department. acres of reserved Federal minerals from Submission for OMB Review: Description of Need: This Notice mining and 9,459.66 acres of public Comment Request informs the publication that the lands from surface entry and mining as Department of Housing and Urban part of the Ash Meadows National AGENCY: Office of the Assistant Development (HUD) has submitted to Wildlife Refuge, Nye County, Nevada. Secretary for Housing, HUD. OMB, for emergency processing, an The reserved Federal minerals and ACTION: Notice. information collection package with public lands proposed for withdrawal respect to HUD’s Mark-to-Market are located within the existing boundary SUMMARY: The proposed information Request for Qualifications (RFQ) which collection requirement described below of the refuge. This notice closes these specifies proposal submission lands for up to 2 years from settlement, has been submitted to the Office of requirements and subsequent HUD Management and Budget (OMB) for sale, location, and entry under the processing procedures. This approval is general land laws, including the mining review, as required by the Paperwork needed in order to issue the RFQ. The Reduction Act. The Department is laws. This notice does not affect private selection of qualified Participating lands within the boundary. This soliciting public comments on the Administrative Entities (PAEs) is subject proposal. application replaces withdrawal authorized under the Multifamily applications N–53691 and N–59336, DATES: Comments due date: August 19, Assisted Housing Reform and which have been canceled. 1998. Affordability Act of 1997 (‘‘FY 98 Appropriation Act’’) (Pub. L. No. 105– DATES: Comments should be received on ADDRESSES: Interested persons are or before November 10, 1998. invited to submit comments regarding 65; 111 Stat 1344, 1384, approved ADDRESSES: Comments should be sent to this proposal. Comments must be October 27, 1997). the Nevada State Director, BLM, 1340 received by the comments due date of The basis for expedited processing Financial Blvd., P.O. Box 12000, Reno, this Notice. Comments should refer to request is that the Department is Nevada 89520. the proposal by name and/or OMB implementing the Mark-to-Market approval number and should be sent to: Program authorized by MAHRA. This FOR FURTHER INFORMATION CONTACT: Joseph F. Lackey, Jr., HUD Desk Officer, program is a high priority to the Dennis J. Samuelson, BLM Nevada State Office of Management and Budget, Department as it will reduce the long- Office, 702–861–6532. Room 10235, New Executive Office term costs of project-based assistance; SUPPLEMENTARY INFORMATION: On July Building, Washington, DC 20503. preserve low-income rental housing and 22, 1998 a petition was approved reduce the cost of insurance claims allowing the U.S. Fish and Wildlife FOR FURTHER INFORMATION CONTACT: under the National Housing Act related Wayne Eddins, Reports Management Service to file an application to to mortgages insured by the Secretary withdraw the following described Officer, Department of Housing and and used to finance eligible multifamily Urban Development, 451 7th Street, SW, public lands from settlement, sale, housing projects. location, or entry under the general land Washington, DC 20410, telephone (202) Agency form numbers, if applicable: laws, including the mining laws, and 708–3055 (this is not a toll-free None. number). Copies of the proposed forms Members of affected public: public the following described reserved and other available documents and non-public entities. Federal mineral interest from location submitted to OMB may be obtained Estimation of the total numbers of and entry under the mining laws, from Mr. Eddins. hours needed to prepare the information subject to valid existing rights: SUPPLEMENTARY INFORMATION: The collection including number of Mount Diablo Meridian respondents, frequency of response, and Department has submitted the proposal (a) Public Lands for the collection of information, as hours of response: The estimated T. 17 S., R. 50 E., described below, to OMB for review, as number of respondents are 150; 20 hours per response, and the frequency Sec. 9, lots 7 and 8; required by the Paperwork Reduction Sec. 10, lot 12; Act (44 U.S.C. Chapter 35). of responses is 1. Sec. 14, lot 11; The Notice lists the following Authority: The Paperwork Reduction Act Sec. 15, lots 1 to 4, inclusive; information: (1) The title of the of 1995, 44 U.S.C. 35, is amended. Sec. 17, E1⁄2NE1⁄4; Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43191

Sec. 19, lot 14; Sec. 5, lots 2 to 4, inclusive, S1⁄2N1⁄2, S1⁄2; DEPARTMENT OF THE INTERIOR Sec. 21, lots 5 and 6; Sec. 6, lots 1 and 7, SE1⁄4NE1⁄4, SE1⁄4SW1⁄4; Sec. 22, lots 1 to 5, inclusive, W1⁄2SE1⁄4, Sec. 7, lots 1 and 2; Minerals Management Service 1 4 1 4 and SE ⁄ SE ⁄ ; Sec. 8, E1⁄2, SW1⁄4; Sec. 23, lots 3 and 4; Sec. 17, W1⁄2E1⁄2, W1⁄2; Preparation of an Environmental Sec. 26, S1⁄2; Sec. 18, SE1⁄4NE1⁄4, SE1⁄4; Assessment for a Notice to Lessees To Sec. 27; Sec. 30, NE1⁄4 (within patent #27–70– Reduce Nitrogen Oxides Emissions in Sec. 28, E1⁄2NE1⁄4; the Central Planning Area of the Gulf Sec. 29, NE1⁄4 NW1⁄4; 0091). Sec. 32, NE1⁄4 NE1⁄4, S1⁄2NE1⁄4, and of Mexico The areas described aggregate 5,360 N1⁄2SE1⁄4; AGENCY: Minerals Management Service, Sec. 34, NE1⁄4; acres in Nye County. Interior. Sec. 35, NE1⁄4, N1⁄2NW1⁄4, SW1⁄4NW1⁄4, The public lands and reserved Federal 1 1 1 1 1 1 ACTION: Preparation of an Environmental W ⁄2SW ⁄4, E ⁄2SE ⁄4, and NW ⁄4SE ⁄4; minerals proposed for withdrawal are Sec. 36, W1⁄2 and SE1⁄4SE1⁄4. Assessment. T. 17 S., R. 51 E., within the existing boundary of the Ash Sec. 31, lot 4, SE1⁄4SW1⁄4, and SW1⁄4SE1⁄4; Meadows Wildlife Refuge. Private lands SUMMARY: Minerals Management Service Sec. 32, S1⁄2NW1⁄4. within the existing boundary are not (MMS) is beginning preparation of an T. 18 S., R. 50 E., affected by this notice. Environmental Assessment (EA) for a Sec. 1, lots 1 to 4, inclusive; For a period of 90 days from the date Notice to Lessees (NTL) to reduce Sec. 2, lots 1 and 2, S1⁄2NE1⁄4, and SE1⁄4; Nitrogen Oxides (NOX) emissions in the 1 1 of publication of this notice, all persons Sec. 3, SW ⁄4SW ⁄4; Central Planning Area (CPA) of the Gulf Sec. 9, W1⁄2NW1⁄4; who wish to submit comments, of Mexico. Sec. 10, E1⁄2; suggestions, or objections in connection Sec. 11, N1⁄2NW1⁄4 and W1⁄2SW1⁄4; with the proposed withdrawal may DATES: Comments due to MMS 1 1 1 Sec. 12, W ⁄2NE ⁄4 and NW ⁄4; present their views in writing to the September 7, 1998. Draft EA for public Sec. 13, SW1⁄4NE1⁄4, SE1⁄4SW1⁄4, review November 16, 1998. The EA Nevada State Director of the Bureau of NW1⁄4SE1⁄4, E1⁄2W1⁄2SW1⁄4SE1⁄4, and completed January 25, 1999. E1⁄2SW1⁄4SE1⁄4; Land Management. FOR FURTHER INFORMATION CONTACT: Sec. 14, NE1⁄4, NW1⁄4SE1⁄4, and SE1⁄4SE1⁄4; Notice is hereby given that a public 1 1 1 Gulf of Mexico OCS Region, Minerals Sec. 15, E ⁄2 and E ⁄2SW ⁄4; meeting in connection with the Sec. 23; Management Service, 1201 Elmwood proposed withdrawal will be held at a Sec. 24, E1⁄2NE1⁄4, NW1⁄4NE1⁄4, W1⁄2SW1⁄4, Park Boulevard, New Orleans, Louisiana and N1⁄2NW1⁄4; later date. A notice of the time and place 70123–2394, Terry Scholten, telephone Sec. 25, S1⁄2N1⁄2 and NW1⁄4NW1⁄4; will be published in the Federal (504) 736–1720. 1 Sec. 26, NE ⁄4. Register and a newspaper in the general SUPPLEMENTARY INFORMATION: The MMS T. 18 S., R. 51 E., vicinity of the lands to be withdrawn at prepares EA’s for proposals which relate Sec. 5, lot 1; least 30 days before the scheduled date to exploration for and the development/ Sec. 6, lots 2 to 6, inclusive, SW1⁄4NE1⁄4, of the meeting. The application will be SE1⁄4NW1⁄4, NE1⁄4SW1⁄4, and SE1⁄4; production of oil and gas resources on Sec. 7, NE1⁄4 and E1⁄2NW1⁄4; processed in accordance with the the Gulf of Mexico Outer Continental Sec. 8, NW1⁄4; regulations set forth in 43 CFR Part Shelf (OCS). The EA’s examine the Sec. 18, lots 2 to 4, inclusive, SW1⁄4NE1⁄4, 2300. potential environmental effects of SE1⁄4NW1⁄4, and E1⁄2SW1⁄4; For a period of 2 years from the date activities described in the proposed Sec. 19, lots 1 and 2, E1⁄2NE1⁄4, NW1⁄4NE1⁄4, action, present MMS’ conclusions 1 1 1 1 1 1 of publication of this notice in the SW ⁄4NE ⁄4, E ⁄2NW ⁄4, E ⁄2SW ⁄4, and regarding the significance of those SE1⁄4; Federal Register, the lands will be effects, and are used as a basis for Sec. 20, W1⁄2E1⁄2 and W1⁄2; segregated as specified above unless the 1 1 1 determining whether or not approval of Sec. 29, W ⁄2NE ⁄4 and NW ⁄4; application is denied or canceled or the 1 # the proposal constitutes major Federal Sec. 30, lot 2, NE ⁄4 (excluding patent 27– withdrawal is approved prior to that 70–009), and E1⁄2NW1⁄4. actions that significantly affect the date. The temporary uses which will be quality of the human environment in The areas described aggregate permitted during this segregative period 9,459.66 acres in Nye County. the sense of the National Environmental are rights-of-way, leases, and permits. Policy Act, Section 102(2)(C). (b) Reserved Federal Minerals The temporary segregation of the The proposed action to be analyzed in T. 17 S., R. 50 E., lands in connection with a withdrawal this EA is a NTL to require best Sec. 10, lots 9, 10, 11, 13, and 14; application or proposal shall not affect available control technology for NOX 1 1 Sec. 16, NW ⁄4NW ⁄4; administrative jurisdiction over the emissions on all facilities in the CPA. Sec. 20, NE1⁄4; lands, and the segregation shall not have The EA will also analyze other Sec. 21, lots 1 to 4, inclusive; alternatives, as well as the no action Sec. 28, SW1⁄4SW1⁄4, E1⁄2SW1⁄4, SE1⁄4; the effect of authorizing any use of the alternative. The analysis in the EA will Sec. 29, NW1⁄4NE1⁄4, SW1⁄4SW1⁄4, E1⁄2SE1⁄4; lands by the U.S. Fish and Wildlife 1 1 1 1 1 1 examine the potential environmental Sec. 33, W ⁄2NW ⁄4, N ⁄2NE ⁄4, SW ⁄4NE ⁄4; Service. Sec. 34, W1⁄2, SE1⁄4; effects of the proposal and alternatives T. 18 S., R. 50 E., The applications, N–53691 and regarding potential impacts on coastal Sec. 2, W1⁄2; 59336, published in the 57 FR 4057, areas in the CPA. Sec. 3, lots 1 to 3, inclusive, SE1⁄4; Feburary 3, 1992, and the 61 FR 36756, The MMS requests interested parties Sec. 4, lot 3, S1⁄2NW1⁄4, SW1⁄4, W1⁄2SE1⁄4; July 12, 1996, repectively, have been to submit comments regarding any Sec. 9, E1⁄2NW1⁄4, W1⁄2E1⁄2; canceled. information or issues that should be 1 1 1 Sec. 10, NW ⁄4, NE ⁄4SW ⁄4; addressed in the EA to Gulf of Mexico Sec. 11, N1⁄2NE1⁄4, SE1⁄4SW1⁄4, SW1⁄4SE1⁄4; Dated: August 6, 1998. OCS Region, Minerals Management Sec. 12, E1⁄2NE1⁄4. William K. Stowers, Service, 1201 Elmwood Park Boulevard, T. 17 S., R. 51 E., Lands Team Lead. Sec. 31, SE1⁄4NE1⁄4, E1⁄2SE1⁄4; New Orleans, Louisiana 70123–2394 by [FR Doc. 98–21577 Filed 8–11–98; 8:45 am] Sec. 32, SW1⁄4. September 7, 1998. After completion of T. 18 S., R. 51 E., BILLING CODE 4310±HC±P the EA, MMS will make a decision on 43192 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

2 NOX controls to be required in the short Comprehensive Management Plan Act of 1930 (the Act) and Commission term. presents and proposal and an alternative rule 207.45,3 that the subject request Dated: August 6, 1998. for guiding future management of the does not show changed circumstances sufficient to warrant institution of an Chris C. Oynes, four national historic trails. The plan serves as a coordinating document that investigation to review the Regional Director, Gulf of Mexico OCS Region. provides broad-based policies, Commission’s affirmative [FR Doc. 98–21582 Filed 8–11–98; 8:45 am] guidelines, and standards for determinations in investigations Nos. BILLING CODE 4310±MR±M administering the four trails in such a 731–TA–406 and 408 (Final): manner, as to ensure the protection of Electrolytic Manganese Dioxide from trail resources, their interpretation and Greece and Japan. EMD is provided for DEPARTMENT OF THE INTERIOR continued use. Both alternatives aim to in subheading 2820.10.00 of the National Park Service balance resource preservation and use. Harmonized Tariff Schedule of the Alternative 1 (current conditions) United States. Comprehensive Management Plan/ reflects the wide variability in the FOR FURTHER INFORMATION CONTACT: Fred Environmental Impact Statement administration and management, Fischer (202–205–3179) or Vera Libeau Oregon, California, Mormon Pioneer, resource protection strategies, and (202–205–3176), Office of and Pony Express National Historic interpretation, visitor experience, and Investigations, U.S. International Trade Trails use that exists today. Alternative 2 (the Commission, 500 E Street SW, proposal) focuses on enhancing resource Washington, DC 20436. Hearing- AGENCY: National Park Service, protection and visitor use. It calls for an impaired persons can obtain Department of the Interior. improved visitor experience through information on this matter by contacting ACTION: Notice of Availability of Draft integrated development and the Commission’s TDD terminal on 202– Environmental Impact Statement for programming and a comprehensive 205–1810. Persons with mobility Oregon, California, Mormon Pioneer, strategy for resource protection, impairments who will need special and Pony Express National Historic including an ambitious program to assistance in gaining access to the Trails. inventory and monitor resources that Commission should contact the Office would bring together, in one location, of the Secretary at 202–205–2000. SUMMARY: Pursuant to section 102(2) (c) information currently dispersed. General information concerning the of the National Environmental Policy Commission may also be obtained by FOR FURTHER INFORMATION CONTACT: Act of 1969, the National Park Service accessing its internet server at http:// (NPS) announces the availability of a Superintendent Long Distance Trails www.usitc.gov. draft environmental impact statement Office at the above address and phone Background Information and comprehensive management plan number. (EIS/CMP) for the Oregon, California, Dated: August 4, 1998. On May 26, 1998, the Commission Mormon Pioneer, and Pony Express Michael D. Snyder, received a request to review its National Historic Trails. Acting Regional Director, Intermountain affirmative determination, as it applied DATES: The DEIS/CMP will remain Region, National Park Service. to imports from Greece (the request), in available for public review through [FR Doc. 98–21464 Filed 8–11–98; 8:45 am] light of changed circumstances, pursuant to section 751(b) of the Act.4 October 19, 1998. Public meetings held BILLING CODE 4310±70±P concerning the DEIS/CMP will be The request was filed by counsel on announced at a later date. behalf of Eveready Battery Company (Eveready), St. Louis, MO. Eveready is ADDRESSES: Comments on the draft EIS INTERNATIONAL TRADE one of three U.S. producers of EMD. The shall be submitted to the COMMISSION company is a captive producer of EMD Superintendent, Long Distance Trails and a purchaser of EMD from other U.S. Office, 324 S. State St., Suite 250, Salt Electrolytic Manganese Dioxide From and foreign manufacturers. EMD is a Lake City, UT 84145. Greece and Japan major ingredient in the manufacture of Copies of the draft EIS will be dry cell batteries used in portable available for review at the public Dismissal of Request for Institution of a Section 751(b) Review Investigation electronic devices. libraries in the counties crossed by the Pursuant to section 207.45(b) of the trails. A list with the specific addresses AGENCY: United States International Commission’s Rules of Practice and will be made available to the mailing Trade Commission (Commission). Procedure,5 the Commission published list associated with this project. For ACTION: Dismissal of a request to a notice in the Federal Register on June additional information contact: 3, 1998,6 requesting comments as to Superintendent, Long Distance Trails institute a section 751(b) investigation concerning the Commission’s whether the alleged changed Office, 324 S. State St., Suite 250, Salt circumstances warranted the institution Lake City, Utah 84145 (801) 539–4095. affirmative determinations in investigations Nos. 731–TA–406 and of review investigations. The Planning and Environmental Quality, 408 (Final): Electrolytic Manganese Commission received comments in Intermountain Support Office— Dioxide from Greece and Japan.1 support of the request from Eveready Denver, National Park Service, 12795 (the requester) and Tosoh Hellas, A.I.C., W. Alameda Parkway, Lakewood, CO SUMMARY: The Commission determines, a Greek producers of EMD.7 Comments 80228, (303) 969–2851 [or (303) 969– pursuant to section 751(b) of the Tariff 2832]. 2 19 U.S.C. § 1675(b). 3 19 CFR 207.45. Office of Public Affairs, National Park 1 The request concerned only imports from 4 Service, Department of the Interior, Greece. However, as the alleged changed 19 U.S.C. § 1675(b). 18th and C. Streets NW, Washington, circumstances predominantly related to the 5 19 CFR 207.45(b). DC 20240, (202) 208–6843. domestic industry, the Commission also solicited 6 63 FR 30254. comments on the possibility to self-initiating a 7 Both Eveready and Tosoh Hellas, while SUPPLEMENTARY INFORMATION: This Draft review of the outstanding order on imports from supporting the initiation of a section 751(b) review Environmental Impact Statement for the Japan. investigation with respect to Greece, oppose the Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43193 in opposition to the request were investigation is warranted for any of EMD is from Greece. Despite the received from Chemetals, Inc. and Kerr- these allegations. In particular: requester’s anecdotal claims, it failed to McGee Chemical (Kerr-McGee), LLC, Addition of a third recognized type of provide specific evidence regarding the U.S. producers of EMD. EMD. The requester asserts that there is U.S. industry’s capacity limitations, a recognized new type of EMD high- Eveready’s own production limitations, Analysis: drain alkaline EMD that has been Eveready’s attempts to work with other In considering whether to institute a introduced to the market since the U.S. producers, or its efforts to qualify review investigation under section Commission’s original investigations. or procure EMD from non-subject and 751(b), the Commission will not While Eveready provided evidence subject sources including Greece. Both institute such an investigation unless it concerning the existence of new high- Chemetals and Kerr-McGee provided is persuaded there is sufficient drain batteries,9 Eveready failed to substantial evidence to contradict information demonstrating: provide specific evidence supporting its Eveready’s claims, most telling being an (1) That there are significant changed claim of a separate and new product analysis of prices. It appears that circumstances from those in existence at such as chemical specifications, alkaline EMD prices have remained the time of the original investigations; certifications, contracts, pricing, or relatively stable in recent years and do (2) That those changed circumstances other information about its own efforts not reflect the severe supply limitations are not the natural and direct result of to develop such a new product either that are alleged to be present in the the imposition of the antidumping and/ internally or with suppliers. Moreover, market. Moreover, Chemetals and Kerr- or countervailing duty orders, and; Chemetals and Kerr-McGee, through (3) That the changed circumstances, McGee have indicated their willingness sworn affidavits, directly refuted the and ability to increase supplies of allegedly indicating that revocation of commercial use of such a new product. the order would not be likely to lead to qualified EMD to Eveready through the Structural changes in battery negotiation and signing of long-term continuation or recurrence of material consumption.—The requester asserts injury to the domestic industry, warrant supply contracts. that there has been a fundamental and In light of the above analysis, the a full investigation.8 permanent shift in battery consumption After consideration of the request for Commission determines that institution toward smaller AA and AAA cell of a review investigation under section review and the response to the notice batteries with a corresponding increase inviting comments, the Commission has 751(b) of the Act concerning the in demand for standard and ‘‘high- Commission’s affirmative determined, pursuant to section 751(b) drain’’ alkaline EMD. The record of the Act and Commission rule 207.45, determinations in investigations Nos. indicates a continuing shift in battery 731–TA–406 and 408 (Final): that the information of record, including consumption from larger C and D cells the request and the comments received Electrolytic Manganese Dioxide from (predominantly used in lighting Greece and Japan, is not warranted. in response to the notice, does not show applications) to smaller AA and AAA changed circumstances sufficient to (predominantly used in higher-drain Issued: August 6, 1998. warrant institution of investigations to portable electronic devices). While By order of the Commission. review the Commission’s affirmative evidence of a shift in the composition of Donna R. Koehnke, determinations in investigations Nos. demand can be a factor supporting Secretary. 731–TA–406 and 408 (Final): institution of a changed circumstances [FR Doc. 98–21618 Filed 8–11–98; 8:45 am] Electrolytic Manganese Dioxide from review, the Commission finds that BILLING CODE 7020±02±P Greece and Japan. institution is not warranted in this case. The request alleged the following Although the record evidence indicates changed circumstances: (1) the addition that there has been a shift in the INTERNATIONAL TRADE of a third recognized type of EMD (high- composition of demand, there is no COMMISSION drain alkaline EMD), (2) structural record evidence that this shift has changes in battery consumption, and (3) [Investigation 332±396] resulted in a shift to a new, high-drain the impending unavailability of supply EMD, as alleged by Eveready. Indeed, of regular and high-drain alkaline EMD Economic Trends and Barriers to since Eveready failed to provide specific from U.S. producers and producers in Trade in Products Covered by the WTO evidence of a new high-drain EMD, the countries not subject to antidumping Agreement on Agriculture underlying basis for Eveready’s orders. The information available on the assertion does not exist. AGENCY: United States International record does not persuade us that a full Impending ‘‘short-supply’’ of regular Trade Commission. and high-drain alkaline EMD.—The ACTION: Institution of investigation and Commission self-initiating such a review scheduling of public hearing. investigation concerning Japan. requester asserts that the U.S. industry 8 is operating at full capacity and that the See, 19 U.S.C. § 1675(b)(2)(A); Heavy Forged EFFECTIVE DATE: August 3, 1998. Handtools from the People’s Republic of China, 62 industry faces unsurmountable barriers FR 36305 (July 7, 1997); Certain Cold-Rolled Carbon to expansion that will prohibit it from SUMMARY: Following receipt of a request Steel Flat Products from Germany and the meeting anticipated future demand for on July 20, 1998, from the U.S. Trade Netherlands, 61 FR 17319 (April 19, 1996); A. EMD. Additionally, the requester asserts Representative (USTR), the Commission Hirsh, Inc. v. United States, 737 F.Supp. 1186 (CIT instituted investigation No. 332–396, 1990: Avesta A v. United States, 724 F. Supp. 974 that EMD from all non-subject foreign (CIT 1988), aff’d 914 F.2d 232 (Fed. Cir. 1990); and sources has already been allocated to Economic Trends and Barriers to Trade Avesta AB v. United States, 689 F. Supp. 1173 (CIT other purchasers and that Everyeady’s in Products Covered by the WTO 1988). only available source of ‘‘high-drain’’ Agreement on Agriculture, under In the Uruguay Round Agreements Act of 1994 section 332(g) of the Tariff Act of 1930 (the URAA), Congress changed the substantive standard applicable to changed circumstances 9 Based on the record, it apears that gains in (19 U.S.C. 1332(g)). reviews from whether the domestic industry would performance exhibited by new high-drain batteries FOR FURTHER INFORMATION: Industry- be materially injured or threatened with material are the result of improvements in battery design and specific information may be obtained injury if the order were revoked to whether not the result of a new type of high-drain EMD. The revocation of the order is likely to lead to the record reflects that EMD currently employed in from Cathy Jabara (202–205–3309) or continuation or recurrence of material injury to the high-drain applications is in fact high quality Roger Corey (202–205–3327), Office of domestic industry. standard alkaline EMD. Industries, U.S. International Trade 43194 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Commission, Washington, DC 20436. parties are also encouraged to provide Persons with mobility impairments For information on the legal aspects of further information at the public hearing who will need special assistance in this investigation contact William and in prehearing and posthearing gaining access to the Commission Gearhart of the Office of the General briefs/statements. should contact the Office of the Secretary at 202–205–2000. General Counsel (202–205–3091). News media Public Hearing should contact Peg O’Laughlin, Office of information concerning the Commission External Relations (202–205–1819). A public hearing in connection with may also be obtained by accessing its Hearing impaired individuals are the investigation will be held at the U.S. Internet server (http://www.usitc.gov). advised that information on this matter International Trade Commission List of Subjects can be obtained by contacting the TDD Building, 500 E Street SW, Washington, terminal on (202) 205–1810. DC, beginning at 9:30 a.m. on March 16, WTO, agricultural trade, production, 1999. All persons will have the right to barriers, distortions, grains, oilseeds, Background appear, by counsel or in person, to dairy, animals and animal products, The USTR has requested that the present information and to be heard. sugar and other sweeteners, wine, Commission provide a report containing Requests to appear at the public hearing cotton, fruits and vegetables, Agreement an informational and analytical resource should be filed with the Secretary, on Agriculture, and methodologies. base to assist the Administration in the United States International Trade Issued: August 5, 1998. Commission, 500 E Street SW, upcoming WTO negotiations on By order of the Commission. agriculture trade to begin in late 1999. Washington, DC, 20436, no later than Donna R. Koehnke, As requested by USTR, in preparing its 5:15 p.m., March 2, 1999. Any Secretary. report, the Commission will examine prehearing briefs (original and 14 the following sectors (including both the copies) should be filed not later than [FR Doc. 98–21619 Filed 8–11–98; 8:45 am] basic commodity and its processed 5:15 p.m., March 4, 1999; the deadline BILLING CODE 7020±02±P products, as appropriate): grains; for filing posthearing briefs or oilseeds (including peanuts); dairy; statements is 5:15 p.m., March 31, 1999. animals and animal products, other than In the event that, as of the close of DEPARTMENT OF JUSTICE dairy; sugar and other sweeteners; wine; business on March 2, 1999, no witnesses Office of Community Oriented Policing cotton; fruits and vegetables (and tree are scheduled to appear at the hearing, Services nuts); and other products as covered in the hearing will be canceled. Any person interested in attending the the WTO Agreement on Agriculture. Agency Information Collection The examination will include: hearing as an observer or non- participant may call the Secretary to the Activities: Proposed Collection; (1) Recent trends in trade, production, Comment Request and other relevant economic variables Commission (202–205–1816) after in these sectors; March 2, 1999 to determine whether the ACTION: Request OMB Emergency (2) Barriers and/or distortions in hearing will be held. Approval; National Survey of Police major countries and product markets Written Submissions Executives, District Commanders and affecting this trade; and Agencies. (3) Methodologies for assessment of In lieu of, or in addition to, the effects of changes in various trade participating in the hearing, interested The Department of Justice, Office of rules in each of these sectors upon the parties are invited to submit written Community Oriented Policing Services trade and economic interests of the statements concerning the matters to be (COPS) has submitted the following United States. addressed by the Commission in its information collection request (ICR) The report will also include report on this investigation. Commercial utilizing emergency review procedures, summaries of the information or financial information that a submitter to the Office of Management and Budget developed, both with respect to sector desires the Commission to treat as (OMB) for review and clearance in trends and trade barriers. confidential must be submitted on accordance with the Paperwork As requested, the Commission plans separate sheets of paper, each clearly Reduction Act of 1995. OMB approval to transmit its report to USTR by July marked ‘‘Confidential Business has been requested by August 17, 1998. 20, 1999, USTR has indicated portions Information’’ at the top. All submissions If granted, the emergency approval is of the report will be classified as requesting confidential treatment must only valid for 180 days. All comments ‘‘confidential’’ and will also be regarded conform with the requirements of and/or questions pertaining to this as an inter-agency memorandum that section 201.6 of the Commission’s Rules pending request for emergency approval will contain predecisional advice and be of Practice and Procedure (19 CFR must be directed to OMB, Office of subject to the deliberative process 201.6). All written submissions, except Information and Regulatory Affairs, privilege. for confidential business information, Attention: Department of Justice Desk will be made available in the Office of Officer, Washington, DC 20530. Preliminary Written Comments the Secretary to the Commission for During the first 60 days of this same (1) In order to assist the Commission inspection by interested parties. To be period a regular review of this in identifying the barriers and/or assured of consideration by the information collection is also being distortions referred to above, the Commission, written statements relating undertaken. Comments are encouraged Commission requests that interested to the Commission’s report should be and will be accepted until October 13, parties provide preliminary written submitted to the Commission at the 1998. During the 60-day regular review comments on such barriers and/or earliest practical date and should be all comments and suggestions, or distortions by November 30, 1998. (2) received no later than 5:15 p.m. on questions regarding additional All preliminary written comments March 31, 1999. All submissions should information, to include obtaining a copy should be addressed to the Secretary, be addressed to the Secretary, United of the proposed information collection United States International Trade States International Trade Commission, instrument with instructions, should be Commission, 500 E Street SW, 500 E Street SW, Washington, DC directed to the COPS Office, Program/ Washington, DC 20436. (3) Interested 20436. Policy Support and Evaluation Division, Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43195

COPS Office, U.S. Department of Justice, are limited in their capacity to describe to provide advice regarding issues 1100 Vermont Avenue, NW., how extensive community policing relating to international competition Washington, DC 20530. Comments also implementation is. In addition, existing policy; specifically, how best to may be submitted to the COPS Office data sets do not permit exploration of cooperate with foreign authorities to via facsimile to 202–633–1386. Your the likelihood that implementation of eliminate international anticompetitive comments should address one or ore of community policing varies within cartel agreements, how best to the following four points: jurisdictions particularly large ones that coordinate United States’ and foreign (1) Evaluate whether the proposed are decentralized to precinct or district antitrust enforcement efforts in the collection of information is necessary levels. The National Survey of Police review of multinational mergers, and for the proper performance of the Executives, District Commanders and how best to address issues that interface functions of the agency, including Agencies will be able to capture international trade and competition whether the information will have variations within a jurisdiction. policy concerns. The meeting will be practical utility; Surveys will incorporate elements held at The Carnegie Endowment for (2) evaluate the accuracy of the that the COPS Office has identified as International Peace, Root Conference agency’s estimate of the burden of the key components of community policing Room, 1779 Massachusetts Avenue, proposed collection of information, and will draw upon prior surveys, other N.W., Washington, D.C. 20036 and will including the validity of the literature, and prior knowledge to begin at 10:00 a.m. EST and end at methodology and assumptions used; develop a comprehensive listing of approximately 4:00 p.m. The agenda for (3) enhance the quality, utility, and community policing elements. the meeting will be as follows: clarity of the information to be Questions will provide more precise 1. Enforcement Cooperation. collected; and information about the extent to which 2. International Merger Review. (4) minimize the burden of the each element is implemented. 3. Trade and Competition Policy collection of information on those who (5) An estimate of the total number of Interface Issues. are to respond, including through the respondents and the amount of time 4. Work Program: Next Steps. use of appropriate automated, estimated for an average respondent to Attendance is open to the interested electronic, mechanical, or other respond: This collection is being public, limited by the availability of technological collection techniques or conducted in two phases as a pilot space. Persons needing special other forms of information technology, survey and a larger follow-up survey. assistance, such as sign language e.g., permitting electronic submission of Two sections, Section A and Section B interpretation or other special responses. will be utilized; a total of approximately accommodations, should notify the Overview of this information 6700 respondents will be surveyed. contact person listed below as soon as collection: Estimated time to complete Section A is possible. Members of the public may (1) Type of Information Collection: 20 minutes with no preparation time; submit written statements by mail, New collection. estimated time to complete Section B is electronic mail, or facsimile at any time (2) Title of the Form/Collection: 1.5 hours including preparation time. before or after the meeting to the contact National Survey of Police Executives, (6) An estimate of the total public person listed below for consideration by District Commanders and Agencies. burden (in hours) associated with the the Advisory Committee. All written (3) Agency form number, if any, and collection: Approximately 6141.6 hours. the applicable component of the submissions will be included in the If additional information is required public record of the Advisory Department of Justice sponsoring the contact: Mr. Robert B. Briggs, Clearance collection: Form: COPS 28/01. Office of Committee. Oral statements from the Officer, United States Department of public will not be solicited or accepted Community Oriented Policing Services, Justice, Information Management and U.S. Department of Justice. at this meeting. For further information Security Staff, Justice Management contact: Merit Janow, c/o Eric J. Weiner, (4) Affected public who will be asked Division, Suite 850, Washington Center, or required to respond, as well as a brief U.S. Department of Justice, Antitrust 1001 G Street, NW., Washington, DC Division, 601 D Street, N.W., Room abstract: A sample of local law 20530. enforcement agency heads and precinct/ 10024, Washington, D.C. 20530, district commanders that have received Dated: August 6, 1998. Telephone: (202) 616–2578, Facsimile: grant funding from the COPS Office will Robert B. Briggs, (202) 514–4508, Electronic mail: be surveyed regarding the nature and Department Clearance Officer, United States [email protected]. extent of community policing Department of Justice. Merit E. Janow, implementation in their agencies and [FR Doc. 98–21574 Filed 8–11–98; 8:45 am] Executive Director, International Competition precincts/districts. BILLING CODE 4410±AT±M Policy Advisory Committee. to uphold its mandate, the COPS [FR Doc. 98–21642 Filed 8–11–98; 8:45 am] Office has awarded hiring and BILLING CODE 4410±11±M redeployment grants, innovative grants, DEPARTMENT OF JUSTICE and training grants to over 10,000 law enforcement agencies nationwide. International Competition Policy DEPARTMENT OF JUSTICE While the COPS Office has made Advisory Committee (ICPAC); Notice of significant strides in funding officers it Meeting Immigration and Naturalization Service is important to consider the 1994 Crime AGENCY: Department of Justice. [INS No. 1936±98] Bill and the emergence of COPS in a ACTION: Notice of meeting. long-term perspective. The proposed survey aims to answer questions SUMMARY: The International competition Immigration and Naturalization Service regarding the nature and extent of Policy Advisory Committee (the User Fee Advisory Committee: Meeting community policing implementation ‘‘Advisory Committee’’) will hold its AGENCY: Immigration and Naturalization across the United States. second meeting on September 11, 1998. Service, Justice. COPS data and prior national surveys The Advisory Committee was ACTION: Notice of meeting. of community policing implementation established by the Department of Justice 43196 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Committee meeting: Immigration and Contact person: Charles D. that a picture identification is required Naturalization Service User Fee Montgomery, Office of the Assistant to enter the building. Advisory Committee. Commissioner, Inspections, Immigration Shay Bilchik, Date and time: Wednesday, November and Naturalization Service, Room 4064, Administrator, Office of Juvenile Justice and 18, 1998, at 1:00 p.m. 425 I Street, NW., Washington, DC Delinquency Prevention. Place: Immigration and Naturalization 20536, telephone (202) 616–7498 or fax [FR Doc. 98–21567 Filed 8–11–98; 8:45 am] Service Headquarters 425 I Street, NW., (202) 514–8345. BILLING CODE 4410±18±P Washington, DC 20536, Shaughnessy Dated: August 4, 1998. Conference Room—6th Floor. Status: Open. 18th meeting of this Doris Meissner, Commissioner, Immigration and NATIONAL ARCHIVES AND RECORDS Advisory Committee. ADMINISTRATION Purpose: Performance of advisory Naturalization Service. responsibilities to the Commissioner of [FR Doc. 98–21561 Filed 8–11–98; 8:45 am] Records Schedules; Availability and the Immigration and Naturalization BILLING CODE 4410±10±M Request for Comments Service pursuant to section 286(k) of the Immigration and Nationality Act, as AGENCY: National Archives and Records amended, 8 U.S.C. 1356(k) and the DEPARTMENT OF JUSTICE Administration, Office of Records Federal Advisory Committee Act 5 Services—Washington, DC. Office of Juvenile Justice and U.S.C. app. 2. The responsibilities of ACTION: Notice of availability of Delinquency Prevention this standing Advisory Committee are to proposed records schedules; request for advise the Commissioner of the comments. Immigration and Naturalization Service [OJP(OJJDP)±1195] SUMMARY: The National Archives and on issues related to the performance of Records Administration (NARA) airport and seaport immigration RIN 1121±ZB31 publishes notice at least once monthly inspection services. This advice should of certain Federal agency requests for include, but need not be limited to, the Notice of Meeting of the Coordinating records disposition authority (records time period during which such services Council on Juvenile Justice and schedules). Once approved by NARA, should be performed, the proper Delinquency Prevention records schedules provide mandatory number and deployment of inspection AGENCY: Office of Justice Programs, instructions on what happens to records officers, the level of fees, and the Office of Juvenile Justice and when no longer needed for current appropriateness of any proposed fee. Delinquency Prevention, Justice. Government business. They authorize These responsibilities are related to the ACTION: Notice of meeting. the preservation of records of assessment of an immigration user fee continuing value in the National pursuant to section 286(d) of the SUPPLEMENTARY INFORMATION: A meeting Archives of the United States and the Immigration and Nationality Act, as of the Coordinating Council on Juvenile destruction, after a specified period, of amended, 8 U.S.C. 1356(d). The Justice and Delinquency Prevention will records lacking administrative, legal, Committee focuses attention on those take place in the District of Columbia, research, or other value. Notice is areas of most concern and benefit to the beginning at 2:00 p.m. on Wednesday, published for records schedules in travel industry, the traveling public, and August 19, 1998 and ending at 4:00 p.m. which agencies propose to destroy the Federal Government. on August 19, 1998. Expedited records not previously authorized for Agenda: scheduling considerations for this disposal or reduce the retention period of records already authorized for 1. Introduction of the Committee meeting precluded the full notice disposal. NARA invites public members. period. In addition to this notice, comments on such records schedules, as 2. Discussion of administrative issues. attendees of meetings held since the 3. Discussion of activities since last Coordinating Council was reconstituted required by 44 U.S.C. 3303a(a). meeting. to include practitioner members will be DATES: Requests for copies must be 4. Discussion of specific concerns and notified separately of this meeting. received in writing on or before questions of Committee members. This advisory committee, chartered as September 28, 1998. Once the appraisal 5. Discussion of future traffic trends. the Coordinating Council on Juvenile of the records is completed, NARA will 6. Discussion of relevant written Justice and Delinquency Prevention, send a copy of the schedule. NARA staff statements submitted in advance by will meet at Jefferson Middle School, usually prepare appraisal members of the public. located at 801 Seventh St. SW., memorandums that contain additional 7. Scheduling of next meeting. Auditorium, Washington, D.C. 20024. information concerning the records Public participation: The meeting is The Coordinating Council, established covered by a proposed schedule. These, open to the public, but advance notice pursuant to Section 3(2)A of the Federal too, may be requested and will be of attendance is requested to ensure Advisory Committee Act, 5 U.S.C. App. provided once the appraisal is adequate seating. Persons planning to 2, will meet to carry out its advisory completed. Requesters will be given 30 attend should notify the contact person functions under Section 206 of the days to submit comments. at least 5 days prior to the meeting. Juvenile Justice and Delinquency ADDRESSES: To request a copy of any Members of the public may submit Prevention Act of 1974, as amended. records schedule identified in this written statements at any time before or This meeting will be open to the public. notice, write to the Life Cycle after the meeting to the contact person For security reasons, members of the Management Division (NWML), for consideration by this Advisory public who are attending the meeting National Archives and Records Committee. Only written statements must contact the Juvenile Justice Administration (NARA), 8601 Adelphi received by the contact person at least Resource Center by close of business Road, College Park, MD 20740–6001. 5 days prior to the meeting will be August 17, 1998. The point of contact is Requests also may be transmitted by considered for discussion at the Jan Shaffer who can be reached at (301) FAX to 301–713–6852 or by e-mail to meeting. 519–5886. The public is further advised [email protected]. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43197

Requesters must cite the control NARA staff has prepared an appraisal 6. Congressional Commission on number, which appears in parentheses memorandum for the schedule, it too Servicemembers and Veterans after the name of the agency which includes information about the records. Transition Assistance (N1–220–98–9, 5 submitted the schedule, and must Further information about the items, 2 temporary items). Panel files provide a mailing address. Those who disposition process is available on and electronic mail and word desire appraisal reports should so request. processing records. Files proposed for indicate in their request. Schedules Pending permanent retention include subject FOR FURTHER INFORMATION CONTACT: files, reports and other publications and Michael L. Miller, Director, Modern 1. Department of Agriculture, Animal the files of the executive director and Records Programs (NWM), National Plant Health Inspection Service, the executive administrative director. Archives and Records Administration, Scientific Services Division (N1–463– 7. Social Security Administration, 8601 Adelphi Road, College Park, MD 96–1, 38 items, 34 temporary items). Division of Representative Payment and 20740–6001. Telephone: (301)713–7110. Records relating to the regulation of the Evaluation (N1–47–98–1, 1 item, 1 environmental release, import, field E-mail: [email protected]. temporary item). Form SSA–6233–BK testing, and inter-state movement of SUPPLEMENTARY INFORMATION: Each year ‘‘Representative Payee Report of genetically-engineered crops and Benefits and Dedicated Account’’, Federal agencies create billions of organisms. Administrative records, records on paper, film, magnetic tape, which is a statement of monthly benefits permit files, and files relating to and funds in a dedicated account and other media. To control this petitions to deregulate currently accumulation, agency records managers involving Title XVI or concurrent regulated crops or organisms are claims. prepare schedules proposing retention proposed for disposal. Special studies periods for records and submit these 8. Tennessee Valley Authority, and records covering policy and Procurement Division (N1–142–98–15, 2 schedules for NARA approval, using the guidelines are proposed for permanent Standard Form (SF) 115, Request for items, 2 temporary items). Electronic retention. data interchange trading agreements Records Disposition Authority. These 2. Department of Commerce, Patent including related electronic mail and schedules provide for the timely transfer and Trademark Office (N1–241–98–2, 5 word processing records. These into the National Archives of items, 5 temporary items). Network and administrative records allow the agency historically valuable records and systems operations and maintenance to transmit common business authorize the disposal of all other records from the Office of the Chief documents electronically to agency records after the agency no longer needs Information Officer and textual and vendors. the records to conduct its business. electronic records for four electronic 9. Tennessee Valley Authority, Some schedules are comprehensive and systems which perform day-to-day cover all the records of an agency or one administrative functions: Job Resource Group (N1–142–98–12, 1 item, of its major subdivisions. Most Application Rating System, Patent 1 temporary item). Computer printouts schedules, however, cover records of Search Room Badge System, Enterprise from a defunct agency program only one office or program or a few Call Center System, and the Revenue containing data concerning land use, series of records. Many of these update Accounting and Management System. facilities, crops, livestock and fertilizer previously approved schedules, and 3. Department of Defense, Office of use. A sample of these records was some include records proposed as the Secretary of Defense (N1–330–98–3, previously approved for permanent permanent. 2 items, 2 temporary items). Reduction retention. No Federal records are authorized for in the retention period for health 10. Tennessee Valley Authority, destruction without the approval of the research protocols and grants, which Human Resources Division (N1–142– Archivist of the United States. This were previously approved for disposal. 97–27, 1 item, 1 temporary item). Files approval is granted only after a Electronic versions of these records of a defunct agency study group tasked thorough consideration of their created by electronic mail and word with studying options for health care administrative use by the agency of processing applications are also and other employee benefit programs. origin, the rights of the Government and proposed for disposal. Dated: July 31, 1998. of private persons directly affected by 4. Department of Defense, Office of Geraldine N. Phillips, the Government’s activities, and the Secretary of Defense (N1–330–98–2, Acting Assistant Archivist for Record whether or not they have historical or 4 items, 4 temporary items). Reduction Services—Washington, DC. other value. in the retention period for records [FR Doc. 98–21592 Filed 8–11–98; 8:45 am] Besides identifying the Federal relating to continuing nursing and BILLING CODE 7515±01±P agencies and any subdivisions medical education programs, which requesting disposition authority, this were previously approved for disposal. public notice lists the organizational Electronic versions of these records NATIONAL TRANSPORTATION unit(s) accumulating the records or created by electronic mail and word SAFETY BOARD indicates agency-wide applicability in processing applications are also the case of schedules that cover records proposed for disposal. Public Hearing on Bus that may be accumulated throughout an 5. Department of Housing and Urban Crashworthiness agency. This notice provides the control Development (N1–207–98–4, 6 items, 6 number assigned to each schedule, the temporary items). Budget Office subject The National Transportation Safety total number of schedule items, and the files primarily dealing with the Board will convene a public hearing number of temporary items (the records Administrative Operations Fund. beginning at 10:00 a.m., local time on proposed for destruction). It also Records date from the period 1958 to Wednesday, August 12, 1998, at the includes a brief description of the 1972. Also included are Federal Riviera Resort Hotel, 2901 Las Vegas temporary records. The records Housing Administration computer Blvd South, Las Vegas, Nevada. For schedule itself contains a full printouts relating to insurance reserves more information, contact Jeanmarie description of the records at the file unit and mortgage and major home Poole, NTSB Office of Highway Safety at level as well as their disposition. If improvement loan insurance. (202) 314–6440 or Terry Williams, 43198 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

NTSB Office of Public Affairs at (202) for the request is being made available In addition, members of the public 314–6100. for public inspection at the NRC’s may provide comments on the subject Dated: August 6, 1998. Public Document Room at 2120 L Street, application within 45 days of the publication of this notice in the Federal Rhonda Underwood, NW (Lower Level), Washington, DC 20555. Register. The comments may be Federal Register Liaison Officer. The NRC hereby provides notice of an provided to David L. Meyer, Chief, [FR Doc. 98–21560 Filed 8–11–98; 8:45 am] opportunity for a hearing on the license Rules Review and Directives Branch, BILLING CODE 7533±01±M amendment under the provisions of 10 Division of Freedom of Information and CFR Part 2, Subpart L, ‘‘Informal Publications Services, Office of Hearing Procedures for Adjudications in Administration, U.S. Nuclear Regulatory NUCLEAR REGULATORY Materials and Operator Licensing Commission, Washington, DC 20555. COMMISSION Proceedings.’’ Pursuant to § 2.1205(a), Dated at Rockville, Maryland, this 6th day any person whose interest may be [Docket Number 40±2259] of August 1998. affected by this proceeding may file a Joseph J. Holonich, Pathfinder Mines Corporation; request for a hearing. In accordance Chief, Uranium Recovery Branch, Division Applications, Hearings, with § 2.1205(c), a request for hearing of Waste Management, Office of Nuclear Determinations, Etc. must be filed within 30 days of the Material Safety and Safeguards. publication of this notice in the Federal [FR Doc. 98–21605 Filed 8–11–98; 8:45 am] AGENCY: Nuclear Regulatory Register. The request for a hearing must BILLING CODE 7590±01±P Commission. be filed with the Office of the Secretary, ACTION: Notice of Receipt of Application either: from Pathfinder Mines Corporation to (1) By delivery to the Docketing and NUCLEAR REGULATORY change two site-reclamation milestones Service Branch of the Office of the COMMISSION Secretary at One White Flint North, in Condition 61 of Source Material [Docket Nos. 50±338 and 50±339] License SUA–672 for the Lucky Mc, 11555 Rockville Pike, Rockville, MD Wyoming uranium mill site. Notice of 20852; or In the Matter of Virginia Electric and Opportunity for a Hearing. (2) By mail or telegram addressed to Power Company North Anna Power the Secretary, U.S. Nuclear Regulatory Station, Unit Nos. 1 and 2; Exemption SUMMARY: Notice is hereby given that Commission, Washington, DC 20555, the U.S. Nuclear Regulatory Attention: Docketing and Service The Virginia Electric and Power Commission (NRC) has received, by Branch. Company (VEPCO, the licensee) is the letter dated July 23, 1998, an application In accordance with 10 CFR 2.1205(e), holder of Facility Operating License from Pathfinder Mines Corporation each request for a hearing must also be Nos. NPF–4 and NPF–7, which (PMC) to amend License Condition (LC) served, by delivering it personally or by authorize operation of the North Anna 61 of its Source Material License No. mail, to: Power Station (NAPS), Unit Nos. 1 and SUA–672 for the Lucky Mc, Wyoming (1) The applicant, Pathfinder Mines 2. The licenses provide, among other uranium mill site. The license Corporation, 935 Pendell Boulevard, things, that the licensee is subject to all amendment application proposes to P.O. Box 730, Mills, Wyoming 82644, rules, regulations, and orders of the modify LC 61 to change the completion Attention: Tom Hardgrove; and Nuclear Regulatory Commission (the date for two site-reclamation milestones. (2) The NRC staff, by delivery to the Commission) now or hereafter in effect. The new dates proposed by PMC would Executive Director for Operations, One The facility consists of two extend completion of placement of the White Flint North, 11555 Rockville pressurized-water reactors at the final radon barrier cover over tailings Pike, Rockville, MD 20852, or by mail licensee’s site located in Louisa County, pile and placement of the erosion addressed to the Executive Director for Virginia. protection cover by three years and Operations, U.S. Nuclear Regulatory II three months. Commission, Washington, DC 20555. In addition to meeting other Title 10 of the Code of Federal FOR FURTHER INFORMATION CONTACT: applicable requirements of 10 CFR Part Regulations (10 CFR), Section 20.1703, Mohammad W. Haque, Uranium 2 of the NRC’s regulations, a request for ‘‘Use of individual respiratory Recovery Branch, Division of Waste a hearing filed by a person other than protection equipment’’ requires in Management, U.S. Nuclear Regulatory an applicant must describe in detail: subsection (a)(1) that ‘‘. . . the licensee Commission, Washington, DC 20555. (1) The interest of the requestor in the shall use only respiratory protection Telephone (301) 415–6640. proceeding; equipment that is tested and certified or SUPPLEMENTARY INFORMATION: The (2) How that interest may be affected had certification extended by the portion of LC 61 with the proposed by the results of the proceeding, National Institute for Occupational changes would read as follows: including the reasons why the requestor Safety and Health/Mine Safety and A. (3) Placement of final radon barrier should be permitted a hearing, with Health Administration (NIOSH/ designed and constructed to limit radon particular reference to the factors set out MSHA).’’ Further, 10 CFR 20.1703(c) emissions to an average flux of no more in § 2.1205(g); requires that ‘‘the licensee shall use as than 20 pCi/m2/s above background— (3) The requestor’s areas of concern emergency devices only respiratory December 31, 2001. about the licensing activity that is the protection equipment that has been B. (1) Placement of erosion protection subject matter of the proceeding; and specifically certified or had certification as part of reclamation to comply with (4) The circumstances establishing extended for emergency use by NIOSH/ Criterion 6 of Appendix A of 10 CFR that the request for a hearing is timely MSHA,’’ and Part 40—December 31, 2002. in accordance with § 2.1205(c). 10 CFR Part 20, Appendix A, PMC’s application to amend LC 61 of The request must also set forth the Protection Factors for Respirators, Source Material License SUA–672, specific aspect or aspects of the subject Footnote d.2 (d), states that ‘‘. . . the which describes the proposed changes matter of the proceeding as to which protection factors apply for atmosphere- to the license condition and the reasons petitioner wishes a hearing. supplying respirators only when Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43199 supplied with adequate respirable air. certified or for which certification has adequate basis for granting the Respirable air shall be provided of the not been extended by NIOSH/MSHA requested exemption to permit the use quality and quantity required in require a demonstration by testing or of MSA SCBAs Model 401, Custom 4500 accordance with NIOSH/MSHA reliable test information that the and Ultralite with 35% oxygen-65% certification (described in 30 CFR part material and performance nitrogen breathing air mixture in the 11). Oxygen and air shall not be used in characteristics of the equipment are sub-atmospheric containments of NAPS, the same apparatus.’’ By letter dated capable of providing the proposed Units 1 and 2. March 3, 1998, as supplemented May 5, degree of protection under anticipated 1998, the licensee requested an conditions of use. VEPCO contracted V exemption from certain requirements of with National Aeronautic and Space Accordingly, the Commission has 10 CFR 20.1703(a)(1), 10 CFR 20.1703(c) Administration’s (NASA) White Sand determined that, pursuant to 10 CFR and 10 CFR Part 20, Appendix A, Test Facility (WSTF) and Lawrence 20.2301, the requested exemption is Footnote d.2 (d). Livermore National Laboratory (LLNL) authorized by law, and will not result in Pursuant to 10 CFR 20.2301, the to conduct applicable oxygen undue hazard to life or property. Commission may, upon application by a compatibility testing. WSTF evaluated Therefore, the Commission hereby licensee or upon its own initiative, grant the compatibility of the MSA Custom grants an exemption from the an exemption from the requirements of 4500 SCBA (testing of the model ‘‘MSA requirements of 10 CFR 20.1703(a)(1), the regulations in Part 20 if it Custom 4500’’ envelops the lower 10 CFR 20.1703(c) and 10 CFR Part 20, determines that the exemption is pressure applications of models ‘‘MSA Appendix A, Footnote d.2.(d), for North authorized by law and would not result Ultralite’’ and ‘‘Model 401’’) with an Anna Power Station, Unit 1 and Unit 2, in undue hazard to life or property. oxygen-enriched breathing gas mixture. provided VEPCO uses SCBAs identified III Based on these evaluations, the licensee and meeting the formal testing outlined concluded that compatibility exists above and follows the above described The NAPS 1&2 containments are provided 1) all hydrocarbon conditions. designed to be maintained at contamination is removed, 2) the SCBAs subatmospheric pressure during power are maintained so as to preclude the Pursuant to 10 CFR 51.32, the operations. The containment pressure introduction of hydrocarbon Commission has determined that the can range from 9.0 to 11.0 pounds per contamination, and 3) the temperature granting of this exemption will not have square inch absolute (psia). This of the system does not exceed 135° F a significant effect on the quality of the containment environment could when the regulator is first activated. human environment (63 FR 40324). potentially impact personnel safety due LLNL also concluded that an MSA This exemption is effective upon to reduced pressure and resulting Custom 4500, equipped with the issuance. oxygen deficiency. Such environment interchangeable silicone facepiece, requires the use of a Self-Contained meets the National Fire Protection Dated at Rockville, Maryland, this 31st day of July, 1998. Breathing Apparatus (SCBA) with Association Flame and Heat Test enriched oxygen breathing gas. The requirements whether operated with For the Nuclear Regulatory Commission. licensee initially purchased Mine Safety 35% oxygen/65% nitrogen breathing gas Samuel J. Collins, Appliances, Inc. (MSA) Model 401 mixture or with compressed air. Director, Office of Nuclear Reactor open-circuit, dual-purpose, pressure- The licensee has indicated that the Regulation. demand SCBAs constructed of brass above conditions are met as follows: (1) [FR Doc. 98–21606 Filed 8–11–98; 8:45 am] components which were originally the MSA repair guidance stipulates that BILLING CODE 7590±01±P intended for use with compressed air. no hydrocarbon-based compounds are The licensee qualified the Model 401 to be used within the pressure boundary cylinders for use with 35% oxygen/65% during maintenance, (2) the SCBAs are NUCLEAR REGULATORY nitrogen following the required to be stored and repaired in COMMISSION recommendations of the Compressed clean, dry locations free of chemical Gas Association’s Pamphlet C–10, contamination, (3) containment average Sunshine Act Meeting Recommended Procedures for Changes temperature is required by Technical of Gas Service for Compressed Gas Specification to be less than or equal to AGENCY HOLDING THE MEETING: Nuclear Cylinders, which established 120°F at NAPS 1&2, and (4) VEPCO Regulatory Commission. procedures to utilize these devices with procedural guidance presently requires DATES: Weeks of August 10, 17, 24, and an enriched oxygen mixture. The that SCBAs using 35% oxygen 65% 31, 1998. licensee is currently using these SCBAs nitrogen breathing gas mixture be with 35% oxygen/65% nitrogen instead equipped with a silicone facepiece. PLACE: Commissioners’ Conference of compressed air. The MSA Model 401 VEPCO has also stated that it has over Room, 11555 Rockville Pike, Rockville, SCBA has received the NIOSH/MSHA 20 years of actual safe operating Maryland. certification for use with compressed experience using SCBAs with 35% STATUS: Public and Closed. air, but has not been tested for 35% oxygen/65% nitrogen mixture with no enriched oxygen applications. Using incidents of oxygen-induced failure or MATTERS TO BE CONSIDERED: these SCBAs without the NIOSH/MSHA equipment maintenance problems Week of August 10 certification requires an exemption from associated with the enriched oxygen 10 CFR 20.1703(a)(1), 10 CFR 20.1703(c) operation. There are no meetings the week of and 10 CFR Part 20, Appendix A, The combination of the existing August 10. Protection Factors for Respirators, NIOSH/MSHA certification of the Footnote d.2.(d). SCBAs (with compressed air), the Week of August 17—Tentative testing of the SCBA with the enriched Wednesday, August 19 IV oxygen-nitrogen mixture conducted for Pursuant to 10 CFR 20.1703(a)(2), VEPCO by NASA and LLNL, and 11:30 a.m.—Affirmation Session (Public SCBAs that have not been tested or VEPCO’s safe use history constitutes an Meeting) (if needed) 43200 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Week of August 24—Tentative NUCLEAR REGULATORY However, should circumstances change COMMISSION during the notice period such that Tuesday, August 25 failure to act in a timely way would 10:00 a.m.—Briefing on 10 CFR Part Biweekly Notice; Applications and result, for example, in derating or Amendments to Facility Operating 70—Proposed Rulemaking, shutdown of the facility, the Licenses Involving No Significant ‘‘Revised Requirements for the Commission may issue the license Hazards Considerations Domestic Licensing of Special amendment before the expiration of the 30-day notice period, provided that its Nuclear Material’’ (Public Meeting) I. Background (Contact: Elizabeth Ten Eyck, 301– final determination is that the Pursuant to Public Law 97–415, the 415–7212) amendment involves no significant U.S. Nuclear Regulatory Commission hazards consideration. The final Wednesday, August 26 (the Commission or NRC staff) is determination will consider all public publishing this regular biweekly notice. and State comments received before 2:00 p.m.—Briefing on Status of Public Law 97–415 revised section 189 action is taken. Should the Commission Activities with CNWRA and HLW of the Atomic Energy Act of 1954, as take this action, it will publish in the Program (Public Meeting) (Contact: amended (the Act), to require the Federal Register a notice of issuance Mike Bell, 301–415–7286) Commission to publish notice of any and provide for opportunity for a 3:30 p.m.—Affirmation Session (Public amendments issued, or proposed to be hearing after issuance. The Commission Meeting) (if needed) issued, under a new provision of section expects that the need to take this action 189 of the Act. This provision grants the will occur very infrequently. Week of August 31 Commission the authority to issue and Written comments may be submitted Wednesday, September 2 make immediately effective any by mail to the Chief, Rules and amendment to an operating license Directives Branch, Division of 10:00 a.m.—Briefing on PRA upon a determination by the Administration Services, Office of Implementation Plan (Public Commission that such amendment Administration, U.S. Nuclear Regulatory Meeting) (Contact: Tom King, 301– involves no significant hazards Commission, Washington, DC 20555– 415–5828) consideration, notwithstanding the 0001, and should cite the publication 11:30 a.m.—Affirmation Session (Public pendency before the Commission of a date and page number of this Federal Meeting) (if needed) request for a hearing from any person. Register notice. Written comments may This biweekly notice includes all also be delivered to Room 6D22, Two Thursday, September 3 notices of amendments issued, or White Flint North, 11545 Rockville proposed to be issued from July 20, Pike, Rockville, Maryland from 7:30 10:00 a.m. and 1:30 p.m.—All 1998, through July 31, 1998. The last a.m. to 4:15 p.m. Federal workdays. Employees Meetings (Public biweekly notice was published on July Copies of written comments received Meetings) on ‘‘The Green’’ Plaza 29, 1998 (63 FR 40551). may be examined at the NRC Public Area between buildings at White Document Room, the Gelman Building, Notice of Consideration of Issuance of Flint (Contact: Bill Hill—301–415– 2120 L Street, NW., Washington, DC. Amendments to Facility Operating 1661) The filing of requests for a hearing and Licenses, Proposed No Significant petitions for leave to intervene is The schedule for Commission Hazards Consideration Determination, discussed below. meetings is subject to change on short and Opportunity for a Hearing notice. To verify the status of meetings By September 11, 1998, the licensee call (recording)—(301) 415–1292. The Commission has made a may file a request for a hearing with Contact Person for more information: proposed determination that the respect to issuance of the amendment to Bill Hill (301) 415–1661. following amendment requests involve the subject facility operating license and no significant hazards consideration. any person whose interest may be The NRC Commission Meeting Under the Commission’s regulations in affected by this proceeding and who Schedule can be found on the Internet 10 CFR 50.92, this means that operation wishes to participate as a party in the at: http://www.nrc.gov/SECY/smj/ of the facility in accordance with the proceeding must file a written request schedule.htm proposed amendment would not (1) for a hearing and a petition for leave to This notice is distributed by mail to involve a significant increase in the intervene. Requests for a hearing and a several hundred subscribers; if you no probability or consequences of an petition for leave to intervene shall be longer wish to receive it, or would like accident previously evaluated; or (2) filed in accordance with the to be added to it, please contact the create the possibility of a new or Commission’s ‘‘Rules of Practice for Office of the Secretary, Attn: Operations different kind of accident from any Domestic Licensing Proceedings’’ in 10 Branch, Washington, D.C. 20555 (301– accident previously evaluated; or (3) CFR Part 2. Interested persons should 415–1661). In addition, distribution of involve a significant reduction in a consult a current copy of 10 CFR 2.714 this meeting notice over the Internet margin of safety. The basis for this which is available at the Commission’s system is available. If you are interested proposed determination for each Public Document Room, the Gelman in receiving this Commission meeting amendment request is shown below. Building, 2120 L Street, NW., schedule electronically, please send an The Commission is seeking public Washington, DC and at the local public electronic message to [email protected] or comments on this proposed document room for the particular [email protected]. determination. Any comments received facility involved. If a request for a within 30 days after the date of hearing or petition for leave to intervene Dated: August 7, 1998. publication of this notice will be is filed by the above date, the William M. Hill, Jr., considered in making any final Commission or an Atomic Safety and SECY Tracking Officer, Office of the determination. Licensing Board, designated by the Secretary. Normally, the Commission will not Commission or by the Chairman of the [FR Doc. 98–21667 Filed 8–7–98; 4:14 pm] issue the amendment until the Atomic Safety and Licensing Board BILLING CODE 7590±01±M expiration of the 30-day notice period. Panel, will rule on the request and/or Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43201 petition; and the Secretary or the Those permitted to intervene become Description of amendment request: designated Atomic Safety and Licensing parties to the proceeding, subject to any Baltimore Gas and Electric Company Board will issue a notice of a hearing or limitations in the order granting leave to (BGE) request a modification involving an appropriate order. intervene, and have the opportunity to replacing the service water (SRW) heat As required by 10 CFR 2.714, a participate fully in the conduct of the exchangers with new plate and frame petition for leave to intervene shall set hearing, including the opportunity to heat exchangers having increased forth with particularity the interest of present evidence and cross-examine thermal performance capability. A the petitioner in the proceeding, and witnesses. similar license amendment dated how that interest may be affected by the If a hearing is requested, the February 8, 1998, was granted to results of the proceeding. The petition Commission will make a final Operating License No. DPR–53—Calvert should specifically explain the reasons determination on the issue of no Cliffs Nuclear Power Plant, Unit 1. why intervention should be permitted significant hazards consideration. The The planned modification for Unit 2 with particular reference to the final determination will serve to decide is virtually identical to the one just following factors: (1) the nature of the when the hearing is held. completed for Unit 1 during the spring petitioner’s right under the Act to be If the final determination is that the 1998 refueling outage. The only made a party to the proceeding; (2) the amendment request involves no exception is the addition of an extra nature and extent of the petitioner’s significant hazards consideration, the manual valve in the Unit 2 system to property, financial, or other interest in Commission may issue the amendment isolate the bypass line for maintenance. the proceeding; and (3) the possible and make it immediately effective, This additional manual valve is needed effect of any order which may be notwithstanding the request for a due to the change in location of the tie- entered in the proceeding on the hearing. Any hearing held would take in to the main header. (The Unit 1 petitioner’s interest. The petition should place after issuance of the amendment. bypass line ties into the main header If the final determination is that the also identify the specific aspect(s) of the downstream of a control valve; amendment request involves a subject matter of the proceeding as to therefore, it did not need a separate significant hazards consideration, any which petitioner wishes to intervene. isolation valve for maintenance.) Any person who has filed a petition for hearing held would take place before The saltwater and SRW piping leave to intervene or who has been the issuance of any amendment. configuration will be modified as admitted as a party may amend the A request for a hearing or a petition necessary to allow proper fit-up to the petition without requesting leave of the for leave to intervene must be filed with Board up to 15 days prior to the first the Secretary of the Commission, U.S. new components. A flow control prehearing conference scheduled in the Nuclear Regulatory Commission, scheme to throttle saltwater flow to the proceeding, but such an amended Washington, DC 20555–0001, Attention: heat exchangers and the associated petition must satisfy the specificity Rulemakings and Adjudications Staff, or bypass lines will be added. Saltwater requirements described above. may be delivered to the Commission’s strainers with an automatic flushing Not later than 15 days prior to the first Public Document Room, the Gelman arrangement will be added upstream of prehearing conference scheduled in the Building, 2120 L Street, NW., each heat exchanger. The majority of the proceeding, a petitioner shall file a Washington DC, by the above date. A physical work associated with this supplement to the petition to intervene copy of the petition should also be sent modification is restricted to the SRW which must include a list of the to the Office of the General Counsel, pump room. contentions which are sought to be U.S. Nuclear Regulatory Commission, Basis for proposed no significant litigated in the matter. Each contention Washington, DC 20555–0001, and to the hazards consideration determination: must consist of a specific statement of attorney for the licensee. As required by 10 CFR 50.91(a), the the issue of law or fact to be raised or Nontimely filings of petitions for licensee has provided its analysis of the controverted. In addition, the petitioner leave to intervene, amended petitions, issue of no significant hazards shall provide a brief explanation of the supplemental petitions and/or requests consideration, which is presented bases of the contention and a concise for a hearing will not be entertained below: statement of the alleged facts or expert absent a determination by the 1. Would not involve a significant increase opinion which support the contention Commission, the presiding officer or the in the probability or consequences of an and on which the petitioner intends to Atomic Safety and Licensing Board that accident previously evaluated. rely in proving the contention at the the petition and/or request should be None of the systems associated with the hearing. The petitioner must also granted based upon a balancing of proposed modification are accident initiators. provide references to those specific factors specified in 10 CFR The SW and SRW Systems are used to mitigate the effects of accidents analyzed in sources and documents of which the 2.714(a)(1)(i)–(v) and 2.714(d). petitioner is aware and on which the the UFSAR [Updated Final Safety Analysis For further details with respect to this Report]. The SW and SRW Systems provide petitioner intends to rely to establish action, see the application for cooling to safety-related equipment following those facts or expert opinion. Petitioner amendment which is available for an accident. They support accident must provide sufficient information to public inspection at the Commission’s mitigation functions; therefore, the proposed show that a genuine dispute exists with Public Document Room, the Gelman modification does not increase the the applicant on a material issue of law Building, 2120 L Street, NW., probability of an accident previously or fact. Contentions shall be limited to Washington, DC, and at the local public evaluated. matters within the scope of the document room for the particular The proposed modification will increase amendment under consideration. The facility involved. the heat removal capacity of the SRW contention must be one which, if System. The design provided under this proven, would entitle the petitioner to Baltimore Gas and Electric Company, activity ensures that the safety features Docket No. 50–318, Calvert Cliffs provided by the SW and SRW are relief. A petitioner who fails to file such maintained, and in some instances enhanced; a supplement which satisfies these Nuclear Power Plant, Unit No. 2, Calvert County, Maryland i.e., the availability of important-to-safety requirements with respect to at least one equipment required to mitigate the contention will not be permitted to Date of amendment request: July 20, radiological consequences of an accident participate as a party. 1998. described in the UFSAR is enhanced by the 43202 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices flexibility and increased thermal margin proposed modification. This activity will not 1. Does the change involve a significant provided with this design. reduce the margin of safety as it exists now. increase in the probability or consequences The redundant cooling capacity of the SW In fact, the margin of safety has been of an accident previously evaluated? and SRW Systems have not been altered. increased by this activity due to the increase The proposed change revises the text of the Furthermore, the proposed activity will not in the thermal capacity of the dual train UFSAR for Unit 1 and Unit 2 to describe how change, degrade, or prevent actions described design (i.e., two heat exchangers per train protection is provided against potential or assumed in any accident described in the versus one heat exchanger per train of the internal floods in the cubicles that house the UFSAR. The proposed activity will not alter original design) and the increased availability Unit 1 River Water and Unit 2 Service Water any assumptions previously made in of safety-related components. Pumps. The previous description concluded evaluating the radiological consequences of Therefore, this proposed modification does that the Unit 1 River Water pumps were any accident described in the UFSAR. not significantly reduce the margin of safety. protected because open cubicle access doors Therefore, the consequences of an accident The NRC staff has reviewed the will permit excess water to flow out of the previously evaluated in the UFSAR have not licensee’s analysis and, based on this cubicles. The practice that has changed, and increased. review, it appears that the three is described in the proposed revisions to the Therefore, the proposed modification does Unit 1 and Unit 2 UFSARs, will provide not involve a significant increase in the standards of 50.92(c) are satisfied. protection of the Unit 1 River Water Pumps probability or consequences of an accident Therefore, the NRC staff proposes to and the Unit 2 Service Water Pumps so that previously evaluated. determine that the amendment request no flooding event can adversely affect more 2. Would not create the possibility of a new involves no significant hazards than one Unit 1 or Unit 2 pump. Therefore, or different type of accident from any consideration. it can be concluded that the proposed accident previously evaluated. Local Public Document Room changes do not involve any increase in the The proposed activity involves modifying location: Calvert County Library, Prince probability or consequences of an accident the SW and SRW System components Frederick, Maryland 20678. previously evaluated. necessary to support the installation of new Attorney for licensee: Jay E. Silberg, 2. Does the change create the possibility of SRW heat exchangers. None of the systems Esquire, Shaw, Pittman, Potts and a new or different kind of accident from any associated with this modification are accident previously evaluated? identified as accident initiators in the Trowbridge, 2300 N Street, NW., Washington, DC 20037. The effect of flooding the pump cubicles UFSAR. The SW and SRW Systems are used was considered in BVPS–1 to have no to mitigate the effects of accidents analyzed NRC Project Director: S. Singh Bajwa, adverse effect because open cubicle access in the UFSAR. None of the functions Director. doors would permit excess water to flow out required of the SRW or SW System have been Duquesne Light Company, et al., Docket of the cubicles, and pipe cracks in moderate changed by this modification. This activity energy piping was not part of the design does not modify any system, structure, or Nos. 50–334 and 50–412, Beaver Valley Power Station, Unit Nos. 1 and 2, basis. Revising the door arrangement component such that it could become described in the BVPS–1 UFSAR such that accident initiator, as opposed to its current Shippingport, Pennsylvania the security/fire doors are normally closed, role as an accident mitigator. Date of amendment request: July 13, requires that the effects of flooding be Therefore, the proposed change does not 1998. considered. Engineering analysis shows that create the possibility of a new or different Description of amendment request: a moderate energy pipe crack, (i.e., the type of accident from any accident The proposed amendments would BVPS–2 design basis internal flood), previously evaluated. produces a leak rate of 1162 gpm, which 3. Would not involve a significant revise the Beaver Valley Power Station, Unit Nos. 1 and 2 (BVPS–1 and BVPS– results in a maximum water level of 0.82 feet, reduction in a margin of safety. with the security/fire doors closed. The water The Safety design basis for the SW and 2) Updated Final Safety Analysis Report level in the adjacent cubicle would reach a SRW System is the availability of sufficient (UFSAR) descriptions of the Intake level at 0.37 feet. This is below the level cooling capacity to ensure continued Structure main entrance and which would cause failures of the MCCs operation of equipment during normal and interconnecting cubicle doors. The [Motor Control Centers] in the pump accident conditions. The redundant cooling current UFSAR descriptions state that cubicles. capacity of these systems, assuming a single the cubicle access doors are open to The maximum leak rate from a failure of failure, is consistent with assumptions used permit excess water from a major pipe a Unit 1 rubber expansion joint in a pump in the accident analysis. cubicle would result in water rising to a level The design, procurement, installation, and rupture to flow out of the cubicles thereby avoiding internal flooding. The which would cause the MCCs to be flooded testing of the equipment associated with the and fail; therefore, maintaining the flood proposed modification are consistent with proposed changes would address a new door between the adjacent cubicles closed the applicable codes and standards governing failure mode of safety-related equipment limits the impact to a single train. the original systems, structures, and that had not been previously considered Failure of a single train of River Water is components. The design of instruments and for BVPS–1. The proposed changes analyzed in the USAR; therefore, this change associated cabling ensures that physical and would state that the cubicle would not introduce a new or different type electrical separation of the two subsystems is interconnecting flood protection doors of accident. maintained. Common-mode failure is not are normally closed with their inflatable 3. Does the change involve a significant introduced by the activity. The equipment is reduction in a margin of safety? qualified for the service conditions stipulated seals depressurized and that the associated security/fire doors are The proposed change in the Unit 1 and for that environment. New cable and Unit 2 UFSARs describes how protection is raceways for this design will be installed in normally closed. The proposed door provided for the Unit 1 River Water, and the accordance with seismic design closure arrangement is intended to Unit 2 Service Water pumps. Protection of requirements. The additional electrical load protect the safety-related equipment in the Unit 1 River Water Pumps and the Unit has been reviewed to ensure the load limits the interconnecting cubicles from the 2 Service Water pumps is provided so that for the vital 1E buses are not exceeded. The consequences of potential internal no flooding event can adversely affect more circuits and components related to the flooding. than one Unit 1 or Unit 2 pump. Therefore, control valves control loops are safety- Basis for proposed no significant it can be concluded that the proposed related, are similar to those used for the other hazards consideration determination: changes do not involve any reduction in a safety-related flow control functions. The margin of safety. proposed modification will not have any As required by 10 CFR 50.91(a), the adverse effects on the safety-related functions licensee has provided its analysis of the The NRC staff has reviewed the of the SW and SRW Systems. issue of no significant hazards licensee’s analysis and, based on this For the above reasons, the existing consideration, which is presented review, it appears that the three licensing bases have not been altered by the below: standards of 10 CFR 50.92(c) are Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43203 satisfied. Therefore, the NRC staff Action ‘‘b’’ and Table 3.7–2. Reference to 2 within the bounds of the safety analyses; proposes to determine that the loop operation is being deleted since it is not therefore, the proposed changes will not amendment request involves no addressed in the ISTS and is not a licensed involve a significant increase in the significant hazards consideration. condition for these plants. The limiting probability or consequences of an accident condition for operation has been modified to previously evaluated. Local Public Document Room incorporate the ISTS wording and requires 2. Does the change create the possibility of location: B.F. Jones Memorial Library, MSSV operability in accordance with Tables a new or different kind of accident from any 663 Franklin Avenue, Aliquippa, PA 3.7–1 and 3.7–2. Table 3.7–1 lists the accident previously evaluated? 15001. maximum allowable power level as a The proposed changes generally Attorney for licensee: Jay E. Silberg, function of the number of operable MSSVs incorporate the ISTS MSSV requirements to Esquire, Shaw, Pittman, Potts & per steam generator and continues to require ensure adequate secondary side overpressure Trowbridge, 2300 N Street, NW., a minimum of 2 operable MSSVs per steam protection is available and properly Washington, DC 20037. generator for continued plant operation. maintained. The revised Limiting Condition Table 3.7–2 specifies the MSSV lift setting for Operation (LCO) limits plant power level NRC Project Director: Robert A. Capra. and tolerance for each MSSV. The valve lift based on the number of operable MSSVs as Duquesne Light Company, et al., Docket setting remains unchanged along with the stated in Table 3.7–1 and provides the valve Nos. 50–334 and 50–412, Beaver Valley current tolerance of +1 percent ¥3 percent. lift settings and tolerances as shown in Table Power Station, Unit Nos. 1 and 2, The Applicability statement has not been 3.7–2. The actions require a reduction in changed since it is consistent with the ISTS power when the number of valves is less than Shippingport, Pennsylvania requirements. the full complement for each steam generator Date of amendment request: July 9, Proposed Action ‘‘a’’ applies with one or and also require at least 2 operable MSSVs 1998. more inoperable MSSVs and requires that per steam generator. When these Description of amendment request: within 4 hours power must be reduced in requirements cannot be met a plant The proposed amendment would revise accordance with the value specified in Table shutdown is required. An action also 3.7–1; otherwise, shut down. This action provides an exception to Specification 3.0.4 Technical Specification (TS) 3/4.7.1.1 satisfies the same goal as the current action and is consistent with the exception and associated Bases for both units. TS by restricting thermal power so that the currently provided. These actions are more 3.7.1.1 currently provides requirements energy transfer to the most limiting steam conservative than the current requirements for reducing the power range high generator is not greater than the available and provide additional assurance that neutron flux trip setpoint when one or relief capacity for that steam generator. Specification 3.7.1.1 will continue to govern more main steam safety valves are Proposed Action ‘‘b’’ incorporates additional the MSSV limitations in a manner consistent inoperable. The current basis for conservatism by specifically requiring at least with the accident analyses assumptions. The determining the amount of trip setpoint 2 operable MSSVs per steam generator. This revised surveillance requirement provides reduction has been determined to be ensures that a minimum overpressure clearly understandable testing requirements protection is available during all applicable to ensure the MSSVs are adequately non-conservative. The proposed modes of operation. Proposed Action ‘‘c’’ monitored and will perform in accordance amendment would specify maximum provides an exception to Specification 3.0.4 with the accident analysis assumptions. The allowable reactor power level based on which does not allow entry into a mode proposed change does not introduce any new the number of operable main steam where the Limiting Condition for Operation mode of operation or require any physical safety valves rather than requiring a (LCO) is not met and actions require a modification to the plant; therefore, this reduction in reactor trip setpoint. This shutdown. This exception is not addressed in change will not create the possibility of a change would be consistent with the the ISTS requirements; however, an new or different kind of accident from any NRC staff’s guidance provided in the exception to Specification 3.0.4 allows entry accident previously evaluated. NRC’s improved Standard Technical into a mode where the LCO applies in 3. Does the change involve a significant conformance with the action statements. reduction in a margin of safety? Specifications for Westinghouse plants Proposed Surveillance Requirement 4.7.1.1 The MSSVs ensure the ASME [American (NUREG–1431, Revision 1). The requires verification of the lift setpoint for Society of Mechanical Engineers] Code, maximum allowable reactor power level each MSSV listed in Table 3.7–2 in Section III requirements are maintained to with inoperable safety valves would be accordance with the Inservice Test Program. limit the secondary system pressure to within calculated based on the Note (1) is applied to Surveillance 110 percent of the design pressure when recommendations of Westinghouse Requirement 4.7.1.1 to provide clarification passing the design steam flow. This ensures Nuclear Safety Advisory Letter (NSAL) of the testing requirements, such that this that the overpressure protection system can 94–01. The proposed change to the Unit testing is required only in Modes 1 and 2 so cope with all operational and transient 1 TS 3.7.1.1 would also delete reference that the plant can enter Modes 2 and 3 where events. Operation with less than the full this specification applies without first number of MSSVs is permitted as long as to 2 loop operation since 2 loop performing the test. A note (2) has been thermal power is restricted to meet the ASME operation is not a licensed condition for applied to the lift setting in Table 3.7–2 that Code requirements. This limitation is either unit. requires a setting corresponding to the provided in the proposed technical Basis for proposed no significant ambient conditions of the valve at the specifications along with operability and hazards consideration determination: nominal operating temperature and pressure. surveillance requirements to ensure the level As required by 10 CFR 50.91(a), the The ISTS does not include this note but it of overpressure protection is maintained. licensee has provided its analysis of the has been included for consistency with the MSSV operability is defined as the ability to issue of no significant hazards current note and provides a clear reminder to open within the setpoint tolerances, relieve consideration, which is presented test personnel of the required test conditions. steam generator overpressure, and reseat The safety valve Bases have been revised when pressure has been reduced. MSSV below: to generally incorporate the ISTS Bases operability is determined by surveillance 1. Does the change involve a significant which significantly improve the content and testing in accordance with the Inservice Test increase in the probability or consequences understanding of the MSSV requirements. program which provides assurance that the of an accident previously evaluated? These changes are consistent with the MSSVs will perform their designed safety The proposed change will generally UFSAR [Updated Final Safety Analysis functions to mitigate the consequences of incorporate the Improved Standard Technical Report] design description and analysis accidents that could result in a challenge to Specification (ISTS) main steam safety valve assumptions where the MSSVs provide the the reactor coolant pressure boundary. The (MSSV) requirements of NUREG–1431 into required overpressure protection. The proposed change continues to ensure that the Specification 3.7.1.1 and associated Bases. proposed changes are consistent with the required components are properly The Unit 1 specification currently includes regulations and provide additional assurance maintained and that the assumed parameters reference to 2 loop operating requirements in that the secondary side pressure remains are verified during the applicable conditions 43204 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices and on a consistent basis; therefore, this requested change is increased wear on the conspicuously posted barricade and change will not reduce the margin of safety. CRDs, resulting in increased buffer seal wear flashing light in individual high The NRC staff has reviewed the or failure. This wear or failure of the buffer radiation areas that are located within seal would result in difficulty or inability to large areas where no enclosure exists for licensee’s analysis and, based on this withdraw the rod subsequent to the review, it appears that the three depressurized scram. The safety function of locking, and no enclosure can be standards of 10 CFR 50.92(c) are the rod to insert on a scram signal, however, reasonably erected. A minor satisfied. Therefore, the NRC staff would be unaffected by this seal degradation. clarification to indicate that the proposes to determine that the Therefore, there is no safety concern with the requirement of paragraph 6.12.1.a also amendment request involves no increased wear due to performance of the applies to 6.12.1.b and an editorial significant hazards consideration. cold scram test. change were added. Local Public Document Room The other consideration associated with Basis for proposed no significant location: B.F. Jones Memorial Library, the new requested change is the possible hazards consideration determination: 663 Franklin Avenue, Aliquippa, PA increased risk of stub tube leakage during the As required by 10 CFR 50.91(a), the cold (depressurized) test. Without the 15001. download due to reactor pressure, the licensee has provided its analysis of the Attorney for licensee: Jay E. Silberg, momentary upward loading on the CRD stub issue of no significant hazards Esquire, Shaw, Pittman, Potts & tube puts the stub tube into tension. Any consideration, which is presented Trowbridge, 2300 N Street, NW., flaws in the stub tube could grow and below: Washington, DC 20037. eventually result in a stub tube leak. The 1. Operation of the facility in accordance NRC Project Director: Robert A. Capra. likelihood of flaws in the stub tubes, with the proposed amendment would not however, is very small, based on the GPU Nuclear, Inc. et al., Docket No. 50– involve a significant increase in the extensive repair work on the stub tube probability or consequences of an accident 219, Oyster Creek Nuclear Generating surfaces performed prior to plant operation. Station, Ocean County, New Jersey previously evaluated. The proposed The integrity of the stub tube repairs is amendment involves changes to the TMI–1 Date of amendment request: July 21, verified by the 1000 pound leak test Technical Specifications, which are 1998. performed during every startup of the reactor. consistent with Regulatory Guide 8.38. This Description of amendment request: This test, therefore, poses very minimal risk change does not involve any change to of stub tube leakage. system or equipment configuration. The The proposed change request would 3. Involve a significant reduction in a permit an alternative to the requirement proposed amendment incorporates an margin of safety. alternative high radiation area control, which to perform Control Rod Drive (CRD) The change will not decrease the margin of scram time testing with the reactor has been previously found to be acceptable safety as defined in the basis of any by the NRC. The reliability of systems and pressurized prior to resuming power Technical Specification. This is because the components relied upon to prevent or operation. The change would permit: (1) requested change, like the existing Technical mitigate the consequences of accidents scram time testing with the reactor Specification test, provides assurance that previous evaluated is not degraded by the depressurized prior to resuming the CRD System is able to perform its safety proposed changes. Therefore, this change operation, and (2) a second scram time function, and therefore does not change the does not increase the probability or margin of safety. test with the reactor pressure above 800 consequences of an accident previously psig, prior to exceeding 40% reactor The NRC staff has reviewed the evaluated. power. licensee’s analysis and, based on this 2. Operation of the facility in accordance Basis for proposed no significant review, it appears that the three with the proposed amendment would not hazards consideration determination: standards of 10 CFR 50.92(c) are create the possibility of a new or different kind of accident from any previously As required by 10 CFR 50.91(a), the satisfied. Therefore, the NRC staff evaluated. This change only involves licensee has provided its analysis of the proposes to determine that the controls for access to high radiation areas. issue of no significant hazards amendment request involves no Access to plant equipment during normal or consideration, which is presented significant hazards consideration. accident conditions will not be affected by below: Local Public Document Room utilizing this alternate method. Therefore, the proposed amendment does not create the 1. Involve a significant increase in the location: Ocean County Library, possibility of a new or different kind of probability of occurrence or consequences of Reference Department, 101 Washington accident from any accident previously an accident previously evaluated; (or) Street, Toms River, NJ 08753 evaluated. There will not be an increase in the Attorney for licensee: Ernest L. Blake, 3. Operation of the facility in accordance probability of occurrence of an accident Jr., Esquire. Shaw, Pitman, Potts & with the proposed amendment would not previously evaluated in the Safety Analysis Trowbridge, 2300 N Street, NW., involve a significant reduction in a margin of Report (SAR) because the requested change Washington, DC 20037. provides additional assurance that the CRD safety. The proposed amendment is NRC Project Director: Cecil consistent with Regulatory Guide 8.38. The System is able to perform its safety function, O.Thomas. and therefore does not change the probability proposed amendment involves high radiation of occurrence of an accident. area access control and is not related to the GPU Nuclear, Inc., et al., Docket No. 50– margin of safety associated with any plant There will not be an increase in the 289, Three Mile Island Nuclear Station, consequences of an accident previously operation or transients. Therefore, it is Unit No. 1, Dauphin County, concluded that operation of the facility in evaluated in the Safety Analysis Report Pennsylvania (SAR) because the requested change will accordance with the proposed amendment ensure that the CRD System is able to Date of amendment request: June 11, does not involve a significant reduction in a margin of safety. perform its safety function, and therefore 1998 does not change the consequences of an Description of amendment request: The NRC staff has reviewed the accident. The proposed amendment would licensee’s analysis and, based on this 2. Create the possibility of a new or incorporate an alternative high radiation review, it appears that the three different kind of accident from any accident previously evaluated; (or) area control for Three Mile Island standards of 10 CFR 50.92(c) are The requested change will not create the Nuclear Station, Unit No. 1 (TMI–1) in satisfied. Therefore, the NRC staff possibility of a new or different kind of accordance with 10 CFR 20.1601(c). The proposes to determine that the accident from any accident previously alternative would modify Technical amendment request involves no evaluated. The first issue associated with the Specification 6.12 to allow for a significant hazards consideration. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43205

Local Public Document Room involved with this change. There are no or other specified outage interval. location: Law/Government Publications changes to the source term, containment Specifically, the following TS Section, State Library of Pennsylvania, isolation or radiological release assumptions surveillance requirements would be (REGIONAL DEPOSITORY) Walnut used in evaluating the radiological revised by the proposed change: 4.1.3.3, consequences in the Seabrook Station Street and Commonwealth Avenue, Box [updated final safety analysis report] UFSAR. Digital Rod Position Indication; 1601, Harrisburg, PA 17105. The new setpoint will continue to initiate the 4.8.1.1.1.b, A.C. Sources—Operating— Attorney for licensee: Ernest L. Blake, automatic ECCS transfer from the injection Transfer of 1E Bus Power from Normal Jr., Esquire, Shaw, Pitman, Potts & mode to the recirculation mode and provide to Alternate Source; 4.8.1.1.2.f.1 through Trowbridge, 2300 N Street, NW., the alarm to alert the operator(s) to begin the 15, A.C. Sources—Operating— Washington, DC 20037. manual actions necessary to complete the Emergency Diesel Generator NRC Project Director: Cecil O. transfer to the recirculation mode. Manual Surveillances; 4.8.3.3, Onsite Power Thomas. operator action is required to complete the Distribution—Trip Circuit For Inverter switchover to the recirculation mode. With North Atlantic Energy Service the new setpoint, sufficient time remains I–2A; 4.8.2.1.c, d & f, D.C. Sources— Corporation, Docket No. 50–443, available for the operator(s) to complete the Operating—125V D.C. Batteries and Seabrook Station, Unit No. 1, transfer prior to receipt of the RWST EMPTY Chargers; 4.8.4.2.a.1) & a.2), Rockingham County, New Hampshire alarm and reaching the vortexing level in the Containment Penetration Conductor RWST. Therefore, the proposed change does Overcurrent Protective Devices and Date of amendment request: May 20, not create the possibility of a new or different Protective Devices for Class 1E Power 1998. kind of accident from any previously Sources Connected to Non-Class 1E Description of amendment request: analyzed. Circuits; 4.8.4.3, Motor Operated Valves 3. The proposed change does not involve The proposed change would revise the Thermal Overload Protection. In Refueling Water Storage Tank (RWST) a significant reduction in a margin of safety. The design bases for the RWST Level Low- addition, the components listed in setpoint associated with Automatic Technical Specification 4.8.2.2, D.C. Switchover to the Containment Sump. Low setpoint is to ensure that the minimum volume of water to support the assumptions Sources—Shutdown—125V DC This change would require a revision to made in the safety analysis is injected prior Batteries and Chargers, have been the Engineered Safety Features to switchover and that there is adequate time evaluated to support an extension in Actuation System Instrumentation Trip available for the operators to complete the frequency to 24 months (+25%). Setpoints, Table 3.3–4, Functional Unit manual actions necessary to complete the Basis for proposed no significant 8.b, RWST Level—Low-Low, along with switchover to the recirculation mode prior to hazards consideration determination: actuation of the RWST EMPTY alarm. The associated Bases Section 3/4.3.2. As required by 10 CFR 50.91(a), the Basis for proposed no significant minimum injection volume assumed in the accident analyses, and time required for the licensee has provided its analysis of the hazards consideration determination: issue of no significant hazards As required by 10 CFR 50.91(a), the operator(s) to initiate and complete manual actions to complete switchover to the consideration, which is presented licensee has provided its analysis of the recirculation mode prior to receipt of the below: issue of no significant hazards RWST EMPTY alarm, remains unaffected by 1. The proposed changes do not involve a consideration, which is presented this change. Therefore, the proposed change significant increase in the probability or below: does not involve a significant reduction in a consequences of an accident previously margin of safety. 1. The proposed change does not involve evaluated. a significant increase in the probability or The NRC staff has reviewed the The proposed changes do not adversely consequences of an accident previously licensee’s analysis, and based on this affect accident initiators or precursors nor evaluated. review, it appears that the three alter the design assumptions, conditions, The proposed change does not adversely standards of 50.92(c) are satisfied. configuration of the facility or the manner in affect accident initiators or precursors and Therefore, the NRC staff proposes to which the plant is operated. The proposed does not alter the design assumptions changes do not alter or prevent the ability of affecting the ability of the RWST and the determine that the amendment request structures, systems, or components (SSCs) to ECCS [Emergency Core Cooling System] involves no significant hazards perform their intended function to mitigate pumps to mitigate the consequences of an consideration. the consequences of an initiating event accident. Local Public Document Room within the acceptance limits assumed in the Revising the RWST Level Low-Low location: Exeter Public Library, Updated Final Safety Analysis Report setpoint has a negligible effect on the Founders Park, Exeter, NH 03833. (UFSAR). The proposed changes are operating margin for the RWST. The revised Attorney for licensee: Lillian M. administrative in nature and do not change setpoint assures that the minimum RWST Cuoco, Esq., Senior Nuclear Counsel, the level of programmatic controls or the volume assumed in the accident analyses is Northeast Utilities Service Company, procedural details associated with injected prior to switchover to the aforementioned surveillance requirements. recirculation mode. The effect on P.O. Box 270, Hartford, CT 06141–0270. NRC Project Director: Cecil Changing the frequencies of the containment flood level, equipment aforementioned surveillance requirements qualification, and pH of the containment O.Thomas. from at least once per 18 months to at least sump and the containment spray fluid, North Atlantic Energy Service once per refueling interval does not change remain within the limits assumed in the Corporation, Docket No. 50–443, the basis for the frequencies. The frequencies accident analyses. were chosen because of the need to perform Therefore, the proposed change does not Seabrook Station, Unit No. 1, these verifications under the conditions that involve a significant increase in the Rockingham County, New Hampshire are normally found during a plant refueling probability or consequences of an accident Date of amendment request: May 21, outage, and to avoid the potential of an previously evaluated. 1998. unplanned transient if these surveillances 2. The proposed change does not create the Description of amendment request: were conducted with the plant at power. possibility of a new or different kind of The proposed change would revise Equipment performance over several accident from any previously analyzed. operating cycles was evaluated to determine The setpoint change does not affect the selected Technical Specification (TS) the impact of extending the surveillance function of the level monitoring channels or surveillance requirements to intervals. This evaluation included a review any function of the accident mitigation accommodate fuel cycles of up to 24 of surveillance results, preventative equipment associated with the RWST. No months for surveillances that are maintenance records, and the frequency and new components or physical changes are currently performed at each 18-month type of corrective maintenance activities, a 43206 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices failure mode analysis, and consultation with being made to the Technical Specification types of internal protective coatings and the respective system engineer. The required safety limits or safety system liners used in the piping and evaluations conclude that the subject SSCs settings that would adversely affect plant components of the systems. The are highly reliable, that presently do not safety. The proposed changes are proposed change also indicates that exhibit time dependent failure modes of administrative in nature and do not change significance, and that there is no indication the level of programmatic controls and periodic maintenance, surveillances, that the proposed extension could cause procedural details associated with the and inspections would be conducted to deterioration in the condition or performance aforementioned surveillance requirements. ensure that coating or liner degradation of the subject SSCs. There are no known From the evaluations performed on the would be promptly detected and mechanisms that would significantly degrade subject SSCs there are no indications that corrected to provide reasonable the performance of the evaluated equipment potential problems would be cycle-length assurance that the systems can perform during normal plant operation. Although dependent or that potential degradation their safety-related functions. there have been generic or repetitive failures would be significant for the time frame of Basis for proposed no significant of some components in the past, which may interest and, therefore, increasing the have affected the ability of the SSCs to surveillance interval to the bounding limit of hazards consideration determination: consistently and successfully perform their 30 months (24 months plus 25%) will have As required by 10 CFR 50.91(a), the safety function, those items have been little, if any, adverse affect on safety. licensee has provided its analysis of the resolved through design changes and rework The proposed changes to the surveillance issue of no significant hazards such that they have not recurred. There have intervals are still consistent with the basis for consideration, which is presented been no repetitive failures or time dependent the intervals and the intent and method of below: failures that were significant in nature which performing the surveillance is unchanged. The proposed change does not would have prevented the SSCs from Deletion of the restriction ‘‘during performing their intended safety function. involve significant hazards shutdown’’ where this restriction is stated consideration because the changes Deletion of the restriction ‘‘during effect on will permit performance of certain safe operation of the plant is given prior to maintenance and testing activities during would not: conduct of a particular surveillance in a conditions or modes other than shutdown. 1. Involve a significant increase in the condition or mode other than shutdown. North Atlantic will ensure, through the probability or consequences of an accident Since the proposed changes only affect the implementation of appropriate previously evaluated. surveillance intervals for SSCs that are used administrative controls, that proper regard to The SWS [Service Water System] provides to mitigate accidents [sic], the changes do not their effect on safe operation of the plant is cooling water directly or indirectly to a affect the probability or consequence of a given prior to conduct of a particular multitude of mitigating and support systems previously analyzed accident. While the surveillance in a condition or mode other such as safety injection, containment spray, proposed changes will lengthen the intervals than shutdown. In addition, use of the and RBCCW [Reactor Building Closed- between surveillances, the increase in subject SSCs during normal plant operation, Cooling Water]. Therefore either directly or intervals has been evaluated. Based on the combined with their previous history of indirectly, the SWS is credited in the reviews of the surveillance tests, inspections, availability and reliability, provide assurance and maintenance activities, it is concluded mitigation of virtually all analyzed operating that the proposed changes will not affect the events and accidents. However, there are no that there is no significant adverse impact on reliability of the subject SSCs. Thus, it is the reliability or availability of these SSCs. failures of the SWS which would directly concluded that the subject SSCs would be initiate any of the licensing basis accidents. Since there are no changes to previous available upon demand to mitigate the accident analyses, the radiological Therefore, the probability of occurrence of consequences of an accident and, therefore, accidents previously evaluated is not consequences associated with these analyses there is no impact on the margin of safety. remain unchanged, therefore, the proposed increased by this activity. changes do not involve a significant increase The NRC staff has reviewed the The SWS is comprised of two separate and in the probability or consequences of an licensee’s analysis, and based on this independent trains, each capable of accident previously evaluated. review, it appears that the three providing the cooling capacity required for normal and accident operation. Therefore, 2. The proposed changes do not create the standards of 50.92(c) are satisfied. possibility of a new or different kind of the failure of a single heat exchanger or train Therefore, the NRC staff proposes to will not influence the consequences of an accident from any previously analyzed. determine that the amendment request The proposed changes do not alter the accident. Only a common mode loss of SWS design assumptions, conditions, involves no significant hazards function could affect accident consequences. configuration of the facility or the manner in consideration. It can be postulated that lining material could which the plant is operated. There are no Local Public Document Room be released as a result of the SWS response changes to the source term, containment location: Exeter Public Library, to an accident or as a result of a seismic isolation or radiological release assumptions Founders Park, Exeter, NH 03833. event, resulting in heat exchanger blockage in used in evaluating the radiological Attorney for licensee: Lillian M. both trains (common mode). However, the consequences in the Seabrook Station Cuoco, Esq., Senior Nuclear Counsel, discussion below provides the basis for UFSAR. Existing system and component Northeast Utilities Service Company, concluding that lining degradation will not redundancy is not being changed by the increase the consequences of an accident. P.O. Box 270, Hartford, CT 06141–0270. In response to a Safety Injection Actuation proposed changes. The proposed changes NRC Project Director: Cecil O. have no adverse impact on component or Signal or a Loss of Normal Power event, the system interactions. The proposed changes Thomas. quantity of flow in safety related SWS heat are administrative in nature and do not Northeast Nuclear Energy Company, et exchangers may increase significantly, change the level of programmatic controls al., Docket No. 50–336, Millstone imparting higher loads on the pipe linings than are typically present during normal and procedural details associated with the Nuclear Power Station, Unit No. 2, New aforementioned surveillance requirements. operation. In spite of this flow increase, it is Therefore, since there are no changes to the London County, Connecticut considered to be much more likely that any design assumptions, conditions, Date of amendment request: July 2, lining degradation will occur and be detected configuration of the facility, or the manner in 1998. under normal operating conditions, and will which the plant is operated and surveilled, Description of amendment request: be corrected prior to the occurrence of an the proposed changes do not create the The proposed amendment would revise event of the type discussed above. SWS pump flow surveillances, performed possibility of a new or different kind of the updated Final Safety Analysis accident from any previously analyzed. periodically during normal operation, subject 3. The proposed changes do not involve a Report (FSAR) by changing FSAR significant portions of the SWS to flow levels significant reduction in a margin of safety. Sections 9.7.2, ‘‘Service Water,’’ and 9.4, which equal or exceed those expected to There is no adverse impact on equipment ‘‘Reactor Building Closed Cooling occur during accidents. Any degraded lining design or operation and there are no changes Water,’’ to discuss the use of various material prone to be released during an Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43207 accident is expected to be released during As discussed previously, it is not considered in the GLs is provided in the licensee’s these pump surveillances. The inspections, to be credible that lining degradation will submittal. operating procedures, and surveillances cause a common mode loss of SWS function. In addition, the licensee proposes to ensure that significant lining releases will be Therefore, since the accident analyses credit revise the wording in the TS promptly detected and investigated. In only one SWS train, released lining would addition, SWS design features provide the not affect accident analyses assumptions. On requirements for offsite circuits to be system with a significant level of protection this basis, it is concluded that margins of consistent with NUREG–0212, against degraded lining debris (e.g., standby safety as demonstrated by the accident ‘‘Standard Technical Specifications for spare RBCCW heat exchanger and EDG analyses would not be affected by postulated Combustion Engineering Pressurized [Emergency Diesel Generator] engine cooler lining material release. Water Reactors,’’ Revision 2, fall 1980, strainers) both during normal operation and Therefore, the change will not involve a and the guidance provided in GL 91–04, while responding to an accident. significant reduction in a margin of safety. ‘‘Changes in Technical Specification An evaluation was performed to assess the The NRC staff has reviewed the Surveillance Intervals to Accommodate significance of loading on the linings due to licensee’s analysis and, based on this a postulated seismic event. The importance 24-Month Fuel Cycle,’’ dated April 2, of seismic loads depends upon their review, it appears that the three 1991. The associated TS Bases will be magnitude relative to normal operating loads, standards of 10 CFR 50.92(c) are updated to reflect the proposed changes. and on their relative frequency of occurrence. satisfied. Therefore, the NRC staff Basis for proposed no significant Normal operating loads include steady state proposes to determine that the hazards consideration determination: flow loads as well as transients due to pump amendment request involves no As required by 10 CFR 50.91(a), the swaps and realignments for surveillances. significant hazards consideration. licensee has provided its analysis of the The evaluation determined that normal Local Public Document Room issue of no significant hazards operating loads are significantly greater than location: Learning Resources Center, consideration, which is presented anticipated seismic loads concurrent with Three Rivers Community-Technical below: steady state flow loads. Therefore, if normal College, 574 New London Turnpike, operating loads do not cause lining to 1. Involve a significant increase in the become detached, it is very unlikely that a Norwich, Connecticut, and the probability or consequences of an accident random seismic event would cause Waterford Library, ATTN: Vince previously evaluated. detachment. In addition, while flow loads are Juliano, 49 Rope Ferry Road, Waterford, The LCOs [Limiting Conditions for continuously present in most of the system Connecticut. Operation] for Technical Specifications [TSs] and normal transients occur many times Attorney for licensee: Lillian M. 3.8.1.1 and 3.8.1.2 will be changed to require during an operating cycle, seismic events at Cuoco, Esq., Senior Nuclear Counsel, a transmission network between offsite the Millstone site are very infrequent (the Northeast Utilities Service Company, power and the onsite Class 1E distribution repetition rate of an OBE [Operating Basis P.O. Box 270, Hartford, Connecticut. system, instead of just between offsite and Earthquake] is hundred of years). Should NRC Deputy Director: Phillip F. the switchyard. This change, which will normal operating loads cause lining McKee. expand the requirement, is consistent with detachment, it is much more probable that the current Millstone Unit No. 2 this released material will be detected, and Northeast Nuclear Energy Company, et interpretation of the required distribution the degraded condition corrected, prior to the al., Docket No. 50–336, Millstone system. Therefore, the proposed changes will occurrence of a seismic event. Nuclear Power Station, Unit No. 2, New not result in a significant increase in the Based upon these discussions, and given London County, Connecticut probability or consequences of an accident the random nature of lining degradation and previously analyzed. the scrutiny with which the SWS is operated Date of amendment request: July 17, The diesel generators (DGs) supply power and maintained, it is not considered to be 1998. to the emergency busses at Millstone Unit credible that the operability of both SWS Description of amendment request: No. 2 in the event of a loss of normal power trains will be simultaneously impaired by The proposed amendment would (LNP). The emergency busses supply the vital lining degradation and release. change the Technical Specifications equipment used to mitigate the consequences Therefore, there is no significant increase (TS) surveillance requirements for the of design basis accidents. Therefore, the in the probability or consequences of an onsite emergency diesel generators diesel generators are vital equipment used to accident previously evaluated. (EDGs) to achieve an overall mitigate the consequences of design basis 2. Create the possibility of a new or accidents. Failure of the DGs will not cause different kind of accident from any accident improvement in the EDGs reliability and a design basis accident to occur. However, previously evaluated. availability. The proposed changes failure of the DGs will affect the As discussed above, the failure of a single would modify the requirement for consequences of design basis accidents if a heat exchanger or a single SWS train will not operability tests of an EDG when the concurrent LNP occurs. cause an accident. Only a common mode loss other EDG is inoperable, delete the The proposed changes will revise the of SWS function could create the possibility requirement for operability tests when action requirements regarding operability of a previously unanalyzed accident, and this one or both offsite A.C. sources are testing of the DGs. The requirement to test loss would not directly initiate an accident. inoperable, eliminate fast loading of the the DGs if offsite circuits are inoperable will However, for the reasons discussed above, EDGs except for the 18-month testing, be deleted. An inoperable offsite circuit, by lining degradatiion will not cause common itself, will not affect the operability of the mode failures to occur. and eliminate fast starts (15 seconds) DGs. The requirement to test the remaining Therefore, the change will not create the except for once per 6 months and during operable DG if one DG is inoperable will be possibility of a new or different kind of the 18-month testing. These proposed modified. Testing will not be required accident from any accident previously changes are generally consistent with provided a common cause failure is not the evaluated. the guidance provided in Generic Letter reason for declaring the DG inoperable. The 3. Involve a significant reduction in a (GL) 84–15, ‘‘Proposed Staff Actions to requirement contained in the first footnote margin of safety. Improve and Maintain Diesel Generator (*) to Technical Specification 3.8.1.1 to The margins of safety of the protective Reliability,’’ dated July 2, 1984, and GL complete the test of the remaining DG will boundaries (fuel matrix/cladding, reactor 93–05, ‘‘Line-Item Technical be deleted. The need to test the remaining DG coolant system pressure boundary, and will be based on the determination of a containment) would not be impacted by the Specifications Improvements to Reduce common cause failure. These changes will postulated release of lining material into the Surveillance Requirements for Testing improve DG reliability by reducing the SWS. The accident analyses in the FSAR During Power Operation,’’ dated number of unnecessary starts and by [Final Safety Analysis Report] demonstrate September 27, 1993. Justification for requiring more appropriate testing of the DGs the performance of the protective boundaries. deviations from the guidance provided when there is a potential for common mode 43208 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices failure. The proposed changes to the action SRs will be added to test the DGs every 184 changes will not create the possibility of a requirements will not change the response of days at conditions similar to the current 31 new or different kind of accident from any the DGs to an LNP. Therefore, the proposed day SRs. These conditions are more accident previously evaluated. changes will not result in a significant restrictive than the new proposed 31 day 3. Involve a significant reduction in the increase in the probability or consequences SRs. The 184 day SRs will require the diesel margin of safety. of an accident previously analyzed. generators to start and obtain speed and This License Amendment Request The requirement contained in the second voltage within 15 seconds and will also proposes to modify the LCOs for electrical footnote (**) to Technical Specification require the diesel generators to be power sources, DG surveillance requirements 3.8.1.1 to allow a one time extension of the synchronized, loaded, and to maintain the and the required actions for inoperable allowed outage time to 7 days will be load for at least 60 minutes. However, it will electrical power sources contained in the deleted. This provision is no longer allow gradual loading, based on Millstone Unit No. 2 Technical necessary since the Millstone Unit No. 1 manufacturer recommendations, to be used. Specifications. The proposed changes will work has been completed. The statements A 184 day surveillance interval is sufficient revise LCO wording to be consistent with the that a successful test of the DG performed for to verify DG fast-start capability, and is required offsite power distribution the current Action Statements c, d, or e will consistent with GL [Generic Letter] 84–15, requirements and improve DG reliability by satisfy the required testing of Action States GL 93–05, and NUREG–1432. Therefore, the minimizing excessive wear of the DGs, and a or b are no longer necessary with the posed changes will not result in a significant changing the starting and loading proposed changes. These statements will be increase in the probability or consequences requirements of the DGs, in accordance with deleted. The removal of these items will not of an accident previously analyzed. manufacturer recommendations, during most change the response of the DGs to an LNP. The list of SRs, contained in SR 4.8.1.2, DG surveillance and operability tests. Therefore, these proposed changes will not that do not have to be performed for the Improving the reliability of the DGs will help result in a significant increase in the operable diesel generator in Modes 5 and 6 ensure the DGs will respond to an LNP as probability or consequences of an accident will be expanded to take into account the 184 described in the Millstone Unit No. 2 FSAR. previously analyzed. day DG SR that will be added. This proposed Therefore, this License Amendment Request The proposed changes to the DG change will exclude the one operable DG surveillance requirements will allow an will not result in a significant reduction in from being loaded when the 184 day SR is the margin of safety as defined in the Bases engine prelube period before all DG tests performed. This is consistent with the starts, allow slow starting of the DGs, and for the Technical Specifications addressed by current SR which excludes performance of the proposed changes. allow the DGs to be loaded in accordance SR 4.8.1.1.2.a.3. Loading the one required with manufacturer recommendations. This operable diesel generator could subject this The NRC staff has reviewed the will decrease the wear on the DGs. The diesel generator to grid faults which could licensee’s analysis and, based on this proposed changes will also allow adequate adversely affect its ability to perform its review, it appears that the three time for the completion of all manufacturer safety function. Therefore, the proposed recommended DG engine prelube standards of 10 CFR 50.92(c) are change will not result in a significant procedures. Modifying starting and loading satisfied. Therefore, the NRC staff increase in the probability or consequences requirements, consistent with the proposes to determine that the manufacturer recommendations, is intended of an accident previously analyzed. amendment request involves no to enhance diesel reliability by minimizing The Bases of these Technical significant hazards consideration. severe test conditions which can lead to Specifications will be modified and expanded to discuss the proposed changes, Local Public Document Room premature failures. In addition, specifying location: Learning Resources Center, that the 184 day DG SRs [surveillance and to provide guidance to ensure the requirements are correctly applied. Three Rivers Community-Technical requirements] will satisfy the 31 day DG College, 574 New London Turnpike, starting and loading SRs will eliminate Therefore, the proposed changes will not redundant testing. These proposed changes result in a significant increase in the Norwich, Connecticut, and the will minimize unnecessary DG testing while probability or consequences of an accident Waterford Library, ATTN: Vince maintaining DG reliability. The proposed previously analyzed. Juliano, 49 Rope Ferry Road, Waterford, changes will not change the response of the These proposed changes do not alter the Connecticut. DGs to an LNP. Therefore, these changes will way any structure, system, or component Attorney for licensee: Lillian M. not result in a significant increase in the functions. The intent of the proposed Cuoco, Esq., Senior Nuclear Counsel, changes is to improve the reliability of the probability or consequences of an accident Northeast Utilities Service Company, previously analyzed. DGs by eliminating unnecessary surveillance testing and allowing most of the surveillance P.O. Box 270, Hartford, Connecticut. The ASTM [American Society for Testing NRC Deputy Director: Phillip F. and Materials] standards referenced for diesel testing to be performed in accordance with fuel oil sampling will be modified in SR the recommendations of the manufacturer. McKee. 4.8.1.1.2.b. The proposed changes will There will be no adverse effect on equipment important to safety. The response of the DGs Northeast Nuclear Energy Company, et replace an outdated standard, and will al., Docket No. 50–336, Millstone remove the year of issuance or revision from to an LNP, as described in the Millstone Unit the ASTM standards referenced. This will No. 2 FSAR [Final Safety Analysis Report], Nuclear Power Station, Unit No. 2, New allow use of the current approved ASTM will remain the same. There will be no effect London County, Connecticut standard. These proposed changes do not on any of the design basis accidents Date of amendment request: July 21, affect the sampling frequency or acceptance previously evaluated. Therefore, this License 1998. criteria of this SR. Therefore, the proposed Amendment Request will not result in a significance increase in the probability or Description of amendment request: changes will not result in a significant The proposed amendment would increase in the probability or consequences consequences of an accident previously of an accident previously analyzed. evaluated. change the Technical Specifications The proposed wording changes to 2. Create the possibility of a new or (TS) by changing various Reactor eliminate any possible confusion when SRs different kind of an accident from any Protection System (RPS) and Engineered 4.8.1.1.1 and 4.8.1.1.2 are referenced by SR accident previously evaluated. Safety Features Actuation System 4.8.1.2, to state that the DGs start from The proposed changes do not alter the (ESFAS) setpoints and allowable values; standby conditions instead of ambient plant configuration (no new or different type correct the specified maximum reactor conditions, and to remove the requirement to of equipment will be installed) or require any power level limited by the high power new or unusual operator actions. They do not perform a DG surveillance only during level RPS trip; add new TS and shutdown will not affect any technical aspect alter the way any structure, system, or of the SRs. Therefore, the proposed changes component functions and do not alter the requirements associated with the will not result in a significant increase in the manner in which the plant is operated. The automatic isolation of steam generator probability or consequences of an accident proposed changes do not introduce any new blowdown; and make several editorial previously analyzed. failure modes. Therefore, the proposed and changes to correct various errors Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43209 and to provide needed clarification. The The proposed changes to the trip setpoints automatic actuation of these ESF functions applicable TS Bases sections would also and allowable values for the Engineered on high containment pressure, as well as be changed to reflect the proposed Safety Features Actuation System (ESFAS) manual actuation, is required to be operable. changes, correct previous errors actuations on low pressurizer pressure, high In addition, the plant would not normally containment pressure, low steam generator maintain pressurizer pressure between 1750 identified during the licensee’s review pressure, low refueling water storage tank psia and 1850 psia. Therefore, since of the TS, eliminate redundant level, and low steam generator level are the automatic actuation of these ESF functions information, and expand the TS Bases to result of revisions to the instrument loop on high containment pressure, as well as discuss the new requirements for the uncertainty and setpoint calculations. These manual actuation, should be operable, and automatic isolation of the steam changes were revised to incorporate the time the plant will operate between 1750 generator blowdown. calculation methodology changes, analytical psia and 1850 psia is small, the ESFAS will Specifically, the proposed changes limit changes, correct errors identified, and continue to function as before. There will be would modify TS 2.1.1, ‘‘Safety to include the effects of a harsh environment no adverse effect on any design basis Limits—Reactor Core,’’ TS 2.2.1, (pressure, temperature, and radiation), where accident previously evaluated or on any ‘‘Limiting Safety System Settings— appropriate. The proposed setpoints and equipment important to safety. Therefore, the allowable values will ensure an ESF proposed change will not result in a Reactor Trip Setpoints,’’ TS 3.3.1.1, [engineered safety feature] actuation signal is significant increase in the probability or ‘‘Instrumentation—Reactor Protective generated at, or before the analytical limits consequences of an accident previously Instrumentation’’ TS 3.3.2.1, used in the respective accident analyses are evaluated. ‘‘Instrumentation—Engineered Safety reached. There will be no adverse effect on The proposed change to the value of steam Features Actuation System any design basis accident previously generator pressure (from 600 psia to 700 psia) Instrumentation,’’ and would add a new evaluated or on any equipment important to when the steam generator low pressure ESF TS 3.7.1.8, ‘‘Plant Systems—Steam safety. Therefore, the proposed change will actuation (main steam line isolation) can be Generator Blowdown Isolation Valves.’’ not result in a significant increase in the blocked will reduce the range of plant probability or consequences of an accident operation when this function is required to As previously noted, the applicable TS previously evaluated. be available. However, since the plant would Bases sections will be updated to reflect The proposed change to add Technical be in Mode 3 when steam generator pressure the proposed changes. Specification requirements for the steam is in this range (RCS temperature of Basis for proposed no significant generator blowdown isolation valves will approximately 486°F to 503°F), automatic hazards consideration determination: provide additional assurance that the actuation of this ESF function on high As required by 10 CFR 50.91(a), the automatic isolation of steam generator containment pressure, as well as manual licensee has provided its analysis of the blowdown will occur as assumed in the loss actuation, is required to be operable. In issue of no significant hazards of main feedwater accident analysis. There addition, the plant would not normally consideration, which is presented will be no adverse effect on any design basis maintain steam generator pressure between below: accident previously evaluated or on any 600 psia and 700 psia. Therefore, since equipment important to safety. Therefore, the automatic actuation of this ESF function on 1. Involve a significant increase in the proposed changes will not result in a high containment pressure, as well as manual probability or consequences of an accident significant increase in the probability or actuation, should be operable, and the time previously evaluated. consequences of an accident previously the plant will operate between 600 psia and The proposed change to correct the evaluated. 700 psia is small, the ESFAS will continue maximum reactor power level from 112% to The proposed change to the value of steam to function as before. There will be no 111.6% is consistent with the maximum high generator pressure when the steam generator adverse effect on any design basis accident power trip setpoint of 106.6%, plus 5% low pressure reactor trip can be bypassed previously evaluated or on any equipment uncertainty, currently used in the safety (from 780 psia to 800 psia) will reduce the important to safety. Therefore, the proposed analyses. This does not change the Technical range of plant operation when this trip is change will not result in a significant Specification required high power reactor required to be available. However, this will increase in the probability or consequences trip setpoint. There will be no adverse effect not affect the range of plant operation when of an accident previously evaluated. on any design basis accident previously this RPS trip is required to be operable. This The minor editorial and non-technical evaluated or on any equipment important to RPS trip is required in Modes 1 and 2. The changes to correct spelling errors, correct a safety. Therefore, the proposed change will expected steam generator pressure during a capitalization error, add page amendment not result in a significant increase in the reactor startup (entry into Mode 2) is numbers, add the specific plant parameter probability or consequences of an accident approximately 900 psia, which corresponds (steam generator pressure) to use if an RPS previously evaluated. to a Reactor Coolant System (RCS) or ESF function can be bypassed, change the The proposed changes to the trip setpoints temperature of approximately 532°F. The value of the parameter (pressurizer pressure) and allowable values for the Reactor proposed change will require the bypass to used in action statements, and a ‘‘[less than Protection System (RPS) trips on high pressurizer pressure, high containment be automatically removed prior to exceeding or equal to]’’ symbol, change ‘‘value’’ to pressure, low steam generator pressure, and a steam generator pressure of 800 psia. There ‘‘setpoint,’’ and update the index will have low steam generator level are the result of will be no adverse effect on any design basis no effect on plant operation. These changes revisions to the instrument loop uncertainty accident previously evaluated or on any will not result in any technical changes to the and setpoint calculations. These calculations equipment important to safety. Therefore, the Millstone Unit No. 2 Technical were revised to incorporate calculation proposed change will not result in a Specifications. There will be no adverse methodology changes, analytical limit significant increase in the probability or effect on any design basis accident changes, correct errors identified, and to consequences of an accident previously previously evaluated or on any equipment include the effects of a harsh environment evaluated. important to safety. Therefore, the proposed (pressure, temperature, and radiation), where The proposed change to the value of change will not result in a significant appropriate. The proposed setpoints and pressurizer pressure (from 1750 psia to 1850 increase in the probability or consequences allowable values will ensure a reactor trip psia) when the pressurizer low pressure ESF of an accident previously evaluated. signal is generated at, or before the analytical actuations (SIAS, CIAS, and EBFAS) [safety The proposed changes to the Technical limits used in the respective accident injection actuation system, containment Specification Bases will incorporate the RPS analyses are reached. There will be no isolation actuation system, and enclosure and ESFAS setpoint changes, correct errors, adverse effect on any design basis accident building filtration actuation system] can be eliminate redundant information, and previously evaluated or on any equipment blocked will reduce the range of plant expand the Bases to discuss the new important to safety. Therefore, the proposed operation when these functions are required requirements for steam generator blowdown changes will not result in a significant to be available. However, since the plant isolation. These changes will have no effect increase in the probability or consequences would normally be in Mode 3 when on equipment operation. There will be no of an accident previously evaluated. pressurizer pressure is in this range, adverse effect on any design basis accident 43210 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices previously evaluated or on any equipment Pennsylvania Power and Light (e.g., MCPR and Reactor pressure) being important to safety. Therefore, the proposed Company, Docket No. 50–387, exceeded. changes will not result in a significant Susquehanna Steam Electric Station, The installation of the OPRM equipment increase in the probability or consequences Unit 1, Luzerne County, Pennsylvania does not increase the consequences of a of an accident previously evaluated. malfunction of equipment important to The proposed changes have no adverse Date of amendment request: June 19, safety. The APRM and RPS systems are effect on any of the design basis accidents 1998. designed to fail in a tripped (fail safe) previously evaluated and have no adverse Description of amendment request: condition; the OPRM will have no affect on effect on how the RPS and ESFAS function The amendment to Unit 1 Technical the consequence of the failure of either to mitigate the consequences of design basis Specifications (TS) involves the system. An inoperative trip signal is received accidents. Therefore, the license amendment addition of a new section entitled by the RPS any time an APRM mode switch request does not impact the probability of an is moved to any position other than Operate, accident previously evaluated nor does it ‘‘Oscillation Power Range Monitoring an APRM module is unplugged, the involve a significant increase in the (OPRM) Instrumentation’’ and revisions electronic operating voltage is low, or the consequences of an accident previously to Section 3.4.1 ‘‘Recirculation Loops APRM has too few LPRM inputs. These evaluated. Operating’’ to remove the specifications functions are not specifically credited in the 2. Create the possibility of a new or related to thermal power stability which accident analysis, but are retained for the different kind of accident from any accident will not be required after the installation RPS as required by the NRC approved previously evaluated. licensing basis. The proposed changes will not alter the of the OPRM instrumentation. Unit 1 is currently operating under Interim The OPRM allows operation under current plant configuration (no new or different type operating conditions presently restricted by of equipment will be installed) or require any Corrective Actions (ICAs) defined in TS the current Technical Specifications by new or unusual operator actions. They do not 3.4.1 that specify restrictions on plant providing automatic suppression functions in alter the way any structure, system, or operation and actions by operators in the area of concern in the event an instability component functions and do not alter the response to instability events. The occurs. The consequences of any accident or manner in which the plant is operated. The OPRM system provides an automatic equipment malfunction are not increased by proposed changes do not introduce any new long-term solution to the instability operating under those conditions. Although failure modes. Therefore, the proposed protected by the OPRM from thermal- changes will not create the possibility of a issue and eases the burden on the operator. hydraulic core instabilities above 30% core new or different kind of accident from any power, operation under natural core accident previously evaluated. Basis for proposed no significant hazards consideration determination: recirculation conditions is not allowed. No 3. Involve a significant reduction in a accidents or transients of a type not analyzed margin of safety. As required by 10 CFR 50.91(a), the in the FSAR are created by operating under The proposed changes will correct the licensee has provided its analysis of the these conditions with the protection of the maximum reactor power level specified; issue of no significant hazards OPRM system. change RPS trip setpoints, allowable values, consideration, which is presented This change does not increase the and bypass setpoints; change ESFAS trip below: probability of an accident as previously setpoints, allowable values, and block evaluated. The OPRM is designed and 1. The proposed change does not involve setpoint changes; add a new Technical installed to not degrade the existing APRM, Specification and additional requirements a significant increase in the probability or consequences of an accident previously LPRM, and RPS systems. These systems will associated with the automatic isolation of still perform all of their intended functions. steam generator blowdown; and make evaluated. This proposal does not involve an increase The new equipment is tested and installed to various minor editorial and non-technical the same or more restrictive environmental changes. There will be no adverse effect on in the probability or consequences of an and seismic envelopes as the existing equipment important to safety. The RPS and accident previously evaluated. systems. The new equipment has been ESFAS will continue to function as designed The OPRM most directly affects the APRM designed and tested to the electromagnetic to mitigate the consequences of design basis and LPRM portions of the Power Range interference (EMI) requirements of Reference accidents. Therefore, there will be no Neutron Monitoring system. Its installation 2, which assures correct operation of the significant reduction of the margin of safety does not affect the operation of these sub- existing equipment. The new system has as defined in the Bases for the Technical systems. None of the accidents or equipment been designed to single failure criteria and is Specifications affected by the proposed malfunctions affected by these sub-systems electrically isolated from equipment of changes. are affected by the presence or operation of the OPRM. different electrical divisions and from non-1E The NRC staff has reviewed the The APRM channels provide the primary equipment. The electrical loading is within licensee’s analysis and, based on this indication of neutron flux within the core the capability of the existing power sources review, it appears that the three and respond almost instantaneously to and the heat loads are within the capability standards of 10 CFR 50.92(c) are neutron flux changes. The APRM Fixed of existing cooling systems. The OPRM satisfied. Therefore, the NRC staff Neutron Flux-High function is capable of allows operation under operating conditions proposes to determine that the generating a trip signal to prevent fuel presently forbidden or restricted by the current Technical Specifications. No other amendment request involves no damage or excessive reactor pressure. For the ASME overpressurization protection analysis transient or accident analysis assumes these significant hazards consideration. in FSAR Chapter 5, the APRM Fixed Neutron operating restrictions. Local Public Document Room Flux-High function is assumed to terminate Based upon the analysis presented above, location: Learning Resources Center, the main steam isolation valve closure event. PP&L concludes that the proposed action Three Rivers Community-Technical The high flux trip, along with the safety/ does not involve an increase in the College, 574 New London Turnpike, relief valves, limit the peak reactor pressure probability or consequences of an accident Norwich, Connecticut, and the vessel pressure to less than the ASME Code previously evaluated. Waterford Library, ATTN: Vince limits. The control rod drop accident (CRDA) 2. The proposed change does not create the Juliano, 49 Rope Ferry Road, Waterford, analysis in Chapter 15 takes credit for the possibility of a new or different kind of Connecticut. APRM Fixed Neutron Flux-High function to accident from any accident previously evaluated. Attorney for licensee: Lillian M. terminate the CRDA. The Recirculation Flow Controller Failure event (pump runup) is also This proposal does not create the Cuoco, Esq., Senior Nuclear Counsel, terminated by the high neutron flux trip. The probability of a new or different type of Northeast Utilities Service Company, APRM Fixed Neutron Flux-High function is accident from any accident previously P.O. Box 270, Hartford, Connecticut. required to be OPERABLE in MODE 1 where evaluated. The OPRM system is a monitoring NRC Deputy Director: Phillip F. the potential consequences of the analyzed and accident mitigation system that cannot McKee. transients could result in the Safety Limits create the possibility for an accident. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43211

The OPRM will allow operation in amendment request involves no 1 and 2) [GE Topical Report NEDC–31677P– conditions currently restricted by the current significant hazards consideration. A, ‘‘Technical Specification Improvement Technical Specifications. Although protected Local Public Document Room Analysis for BWR Isolation Actuation by the OPRM from thermal-hydraulic core location: Osterhout Free Library, Instrumentation,’’ July 1990 and GE Topical instabilities above 30% core power, Reference Department, 71 South Report GENE–770–06–1–A, ‘‘Bases for operation under natural circulation Changes to Surveillance Test Intervals and conditions is not allowed. No accidents or Franklin Street, Wilkes-Barre, PA 18701. Allowed Out-Of-Service Times for Selected transients of a type not analyzed in the FSAR Attorney for licensee: Jay Silberg, Instrumentation Technical Specifications,’’ are created by operating under these Esquire, Shaw, Pittman, Potts and December 1992] conclude that the proposed conditions with the protection of the OPRM Trowbridge, 2300 N Street NW., AOT for the safety system instrumentation system. No new failure modes of either the Washington, DC 20037. results in an insignificant change in the core new OPRM equipment or of the existing NRC Project Director: Robert A. Capra. damage frequency. The AOTs result in a APRM equipment have been introduced. slight increase in the unavailability of the Quality software design, testing, Power Authority of the State of New safety functions. The overall effect on the implementation and module self-health York, Docket No. 50–333, James A. probability of an accident is negligible. The testing provides assurance that no new FitzPatrick Nuclear Power Plant, NRC concurred in their SERs [safety equipment malfunctions due to software Oswego County, New York evaluation reports] (References 3 and 4) [NRC errors are created. The possibility of an Safety Evaluation Report, letter from Charles Date of amendment request: July 6, E. Rossi, NRC to S.D. Floyd, BWR Owners accident of a new or different type than any 1998 evaluated previously is not created. Group, ‘‘General Electric Company Topical The new OPRM equipment is designed and Description of amendment request: Report NEDC–31677P, Technical installed to the same system requirements as The proposed Technical Specification Specification Improvement Analysis for BWR the existing APRM equipment and is (TS) changes represent revisions to the Isolation Actuation Instrumentation’’, June designed and tested to have no impact on the Radiological Effluent Technical 18, 1990 and NRC Safety Evaluation Report, existing functions of the APRM system. Specification (RETS) Section 3.5.b.1, letter from Charles E. Rossi, NRC to R.D. Appropriate isolation is provided where new ‘‘Main Condenser Steam Jet Air Ejector Binz, BWR Owners Group, ‘‘General Electric interconnections between redundant (SJAE)’’ and Table 3.10–1 ‘‘Radiation Company Topical Report GENE–770–06–1, separation groups are formed. The OPRM Bases for Changes to Surveillance Test Monitoring Systems that Initiate and/or Intervals and Allowed Out-Of-Service Times modules have been designed and tested to Isolate Systems’’ including associated assure that no new failure modes have been for Selected Instrumentation Technical introduced. TS Bases. The existing RETS for Specifications,’’ July 21, 1992] with this Therefore, the proposed change does not radiation monitoring instrumentation conclusion. Consequently, there is not a create the possibility of a new or different systems that initiate and/or isolate significant increase in the consequences of an kind of accident from any accident systems will be changed by adding accident. previously evaluated. Allowable Outage Times (AOTs) and Since the editorial and administrative 3. The proposed change does not involve incorporating editorial and items do not alter the meaning or intent of a significant reduction in the margin of administrative changes to clarify any requirements, they do not involve a significant increase in the probability or safety. requirements. There has been no reduction in the margin consequences of an accident previously Basis for proposed no significant evaluated. of safety as defined in the basis for the hazards consideration determination: Technical Specifications. The OPRM system 2. Create the possibility of a new or does not negatively impact the existing As required by 10 CFR 50.91(a), the different kind of accident from any accident APRM system. As a result, the margins in the licensee has provided its analysis of the previously evaluated. Technical Specifications for the APRM issue of no significant hazards The proposed changes to the protective system are not impacted by this addition. consideration, which is presented instrumentation trip system specifications do Current operation under the ICAs provides below: not create the possibility of a new or different kind of accident because they do not an acceptable margin of safety in the event 1. Involve a significant increase in the of an instability event as the result of introduce any new operational modes or probability or consequences of an accident physical modifications to the plant. preventive actions and Technical previously evaluated. Specification controlled response by the For systems with only one channel (Main The inherent redundancy and reliability of Control Room Ventilation) or two-out-of-two control room operators. The OPRM system the protective instrumentation trip systems logic system (SJAE Radiation Monitors) a six- provides an increase in the reliability of the ensure that the consequences of an accident hour surveillance AOT is being proposed and protection of the margin of safety by are not significantly increased. In addition, a repair time AOT is not allowed. This is providing automatic protection of the MCPR the restrictive Allowable Outage Time (AOT) consistent with GE Topical Reports safety limit, while the protection burden is interval limits the probability of the significantly reduced for the control room protective instrument channel being referenced in current TS Bases 4.2 and STS operators. This protection is demonstrated as unavailable and an accident requiring its [Standard Technical Specifications] and described above, and in the NRC reviewed function from occurring simultaneously. The therefore, will not introduce a new or and approved Topical Reports NEDO–32465– requirement that the associated trip function different kind of accident than previously A and CENPD–400–P–A. maintains trip capability for selected evaluated. Replacement of the ICA operating instrumentation ensures that the protective Since the editorial and administrative restrictions from Technical Specifications instrumentation response will occur such items do not alter plant configurations or with the OPRM system does not affect the that the consequences of an accident are not operating modes, they do not create the margin of safety associated with any other different from those previously evaluated. possibility of a new or different kind of system or fuel design parameter. The proposed changes provide AOTs for test accident. and repair of plant instrumentation. The 3. Involve a significant reduction in the Therefore, the change does not changes do not introduce any new modes of margin of safety. involve a reduction in the margin of plant operation, make any physical changes, The protective instrumentation safety. or alter any operational setpoints. Therefore, surveillance requirements provide The NRC staff has reviewed the the changes do not degrade the performance verification of the operability of the trip system instrumentation channels. In licensee’s analysis and, based on this of any safety system assumed to function in the accident analysis. Consequently, there is addition, the redundant channel that review, it appears that the three no effect on the probability of occurrence of monitors the identical Trip Function standards of 10 CFR 50.92(c) are an accident. maintains trip capability for the relatively satisfied. Therefore, the NRC staff Regarding the consequences of an accident, short duration of the test or repair time proposes to determine that the the GE Licensing Topical Reports (References period. This ensures that protective 43212 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices instrumentation reliability is maintained. As required by 10 CFR 50.91(a), the and air operator assembly (including pilot The proposed change provides for a specific licensee has provided its analysis of the rod) will operate as designed. Offsite testing time period to perform required surveillances issue of no significant hazards verifies pilot disc operation, setpoint on instrument channels without trips present consideration, which is presented calibration, stroke time and main valve disc in associated trip systems. This time operation. allotment tends to enhance the margin of below: Deleting the in-situ testing requirement, as safety by decreasing the probability of 1. The proposed changes do not involve a proposed, will reduce the probability of unnecessary challenges to safety systems and significant increase in the probability or increasing SRV leakage, which should reduce inadvertent plant transients. The evaluations consequences of an accident previously the probability of an inadvertent opening of presented in the referenced GE Licensing evaluated. an SRV. Therefore, any SRV pilot leakage Topical Reports concluded that the overall The proposed TS change does not involve that can be eliminated would reduce the effect of the proposed changes provides a net any physical changes to plant structures, probability of occurrence of a malfunction of increase in plant safety. systems or components (SSC). The ADS will that SRV. Deleting the ADS/SRV in-situ The only action resulting from the continue to function as designed. The ADS functional test will in no way increase any proposed changes to RETS is to add AOTs for is an Emergency Core Cooling System (ECCS) consequences of a malfunction of plant selected instrumentation. Spurious signals designed to mitigate the consequences of an equipment important to safety. The during testing could initiate plant transients. accident, and therefore, can not contribute to consequences of a malfunction of an ADS/ These transients are bounded by the current the initiation of any accident. The ADS SRV as discussed in the Hope Creek UFSAR transient analysis. These tests do not subject utilizes five of the 14 main steam line SRVs remain unchanged. the instruments to any conditions beyond as the primary method for depressurizing the In addition, eliminating a known initiator their design specifications and are performed reactor pressure vessel to permit low of SRV leakage, as proposed in this TS in accordance with approved testing pressure core cooling capability in the event change, would help reduce operator standards. This testing ensures equipment of a small break Loss-of-Coolant-Accident workarounds in the form of suppression pool operability by identifying degraded (LOCA) if the high pressure cooling systems cooling and letdown operation activities. As conditions, initiating corrective action and (i.e., High Pressure Cooling Injection (HPCI) a result, this will reduce the unnecessary properly retesting them. Therefore, the and Reactor Core Isolation Cooling (RCIC) operation of the Residual Heat Removal proposed RETS do not involve a significant systems) fail to maintain adequate reactor (RHR) and its supporting systems. reduction in a margin of safety. vessel water level. Therefore, the proposed TS change does Deleting the TS surveillance requirements not involve an increase in the probability or The NRC staff has reviewed the to perform the in-situ testing of the ADS/ consequences of an accident previously licensee’s analysis and, based on this SRVs during startup, as proposed, should evaluated. review, it appears that the three reduce the probability of an inadvertent 2. The proposed change does not create the standards of 50.92(c) are satisfied. opening of an SRV as discussed in Section possibility of a new or different kind of Therefore, the NRC staff proposes to 15.1.4 of the Hope Creek [Updated Final accident from any accident previously determine that the amendment request Safety Analysis Report] UFSAR since evaluated. involves no significant hazards deleting this testing requirement will The proposed TS changes do not involve consideration. eliminate a known initiator of SRV pilot any physical changes to plant SSC. The leakage and subsequent erosion. This design and operation of the ADS/SRVs are Local Public Document Room proposed TS change will have a tendency to not changed from that currently described in location: Reference and Documents increase, rather than decrease, the reliability the UFSAR. The ADS will continue to Department, Penfield Library, State of the ADS/SRVs by eliminating the in-situ function as designed to mitigate the University of New York, Oswego, New ADS functional startup testing. The consequences of an accident. No changes of York 13126. probability of the ADS/SRVs to open on any kind are being made to the valves, Attorney for licensee: Mr. David E. demand has been demonstrated to be auxiliary components or ADS logic. Deleting Blabey, 1633 Broadway, New York, New extremely high and is not measurably the requirement to perform the ADS in-situ York 10019. improved through the in-situ ADS functional functional test during plant startup as NRC Project Director: S. Singh Bajwa, startup testing. proposed in this TS change request reduces Director Using the provisions of 10CFR50.59, the likelihood of an SRV developing a leak PSE&G will establish a method for and degrading throughout the subsequent Public Service Electric & Gas Company, performing SRV acoustic monitor channel operating cycle. Therefore, there is no Docket No. 50–354, Hope Creek calibration that does not require reactor possibility that implementing this proposed Generating Station, Salem County, New steam pressure or SRV opening. This testing TS change would create a different type of Jersey method will comply with the current TS malfunction to the ADS/SRVs than any definition of CHANNEL CALIBRATION. previously evaluated. Date of amendment request: June 25, Since the notes associated with TS Eliminating the requirement to perform the 1998. Surveillance Requirement 4.4.2.1 (providing in-situ testing of the ADS/SRVs during Description of amendment request: a compliance exception to the provisions of startup activities does not create a new or The proposed changes affect Technical TS 4.0.4 to allow for proper reactor steam different type of accident than any previously Specification (TS) Surveillance pressure to perform the test and an allowance evaluated. There is no accident scenario Requirement 4.5.1.d.2.b by deleting the for noise level adjustments) are no longer associated with testing the ADS/SRVs other needed, their removal will not affect plant than the inadvertent opening of a relief valve, requirement to perform in-situ operation or testing and will not involve an which is currently discussed in Section functional testing of the Automatic increase in the probability or consequences 15.1.4 of the UFSAR. The proposed TS Depressurization System (ADS) safety of an accident previously evaluated. changes do not alter the conclusions relief valves (SRVs) during startup This proposed TS change will not increase described in the UFSAR regarding an testing activities. The proposed changes the probability of occurrence of a inadvertent opening of an SRV. No new or also affect TS Surveillance Requirement malfunction of any plant equipment different type of accident will be created as 4.4.2.1.b such that the 18-month important to safety. Alternate testing a result of these proposed changes. channel calibration for the SRV acoustic methods at Hope Creek and at the offsite test Therefore, the proposed TS change does monitors will no longer require an facility adequately demonstrate proper ADS not create the possibility of a new or different valve operation and assure that the valves kind of accident from any previously exception to the provisions of TS 4.0.4, will continue to function as designed. evaluated. nor adjustments to SRV full open noise Existing surveillance testing and inspections Using the provisions of 10CFR50.59, levels. of the ADS/SRVs at Hope Creek verify that PSE&G will establish a method for Basis for proposed no significant the ADS initiation logic, solenoid valve performing SRV acoustic monitor channel hazards consideration determination: operation, pneumatic gas supply integrity calibration that does not require reactor Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43213 steam pressure or SRV opening. This testing Description of amendment request: necessary, in the event of an accident. Based method will comply with the current TS The proposed amendment would revise on the above, the addition of the 72 hour definition of CHANNEL CALIBRATION. the Watts Bar Nuclear Plant (WBN) completion time and clarifications to existing Since the notes associated with TS Technical Specifications (TS) and TS in accordance with this proposed Surveillance Requirement 4.4.2.1 (providing amendment do not significantly increase the a compliance exception to the provisions of associated Bases to address a new probability or consequences of an accident TS 4.0.4 to allow for proper reactor steam condition (Condition B) and associated previously evaluated. pressure to perform the test and an allowance actions in which one train (consisting of B. The proposed amendment does not to perform noise level adjustments) are no two valves) of Steam Generator create the possibility of a new or different longer needed, their removal will not affect Atmospheric Dump Valves (ADVs), kind of accident from any accident plant operation or testing and will not create although functional, would be previously evaluated. the possibility of a new or different kind of considered technically INOPERABLE in The addition of the 72 hour completion accident from any previously evaluated. the event of one train of the auxiliary time and clarifications to existing TS does not cause the initiation of any accident nor 3. The proposed change does not involve control air system (ACAS) was out of a significant reduction in a margin of safety. create any new credible limiting failure for service. The action required for the new safety-related systems and components. The The proposed TS change involves deleting condition is to restore the ADV lines to change does not result in an event previously the requirement to perform in-situ functional OPERABLE status within 72 hours. In deemed incredible being made credible. As testing of the ADS/SRVs during startup addition, the proposed amendment such, it does not create the possibility of an activities. This testing imposes an would make a correction to the required accident different than any evaluated in the unnecessary challenge on the ADS/SRVs and FSAR [Final Safety Analysis Report]. The has been linked to SRV degradation (e.g., action for Condition B (new Condition C) to clarify that the required action for change has an insignificant effect on the pilot valve and/or main valve leakage). This ability of the safety-related systems to proposed TS change should reduce SRV two or more inoperable ADV lines (with perform their intended safety functions. leakage and improve ADS/SRV reliability by the exception of new Condition B) is to Although the period during which a safety- reducing the potential for spurious SRV restore all but one ADV line to operable related function (ACAS air supply) is actuation. Since ADS operability can be status. The current Required Action for assumed inoperable is extended from 24 to readily demonstrated with extremely high Condition B incorrectly states that only 72 hours, sufficient remaining equipment confidence by the existing surveillance tests one ADV line must be restored to (two ADVs supplied by the opposite train and inspections performed for the ADS, there ACAS) is available to mitigate the limiting will be no reduction in any margin of safety operable status. Basis for proposed no significant [steam generator tube rupture] SGTR resulting from this proposed TS change. accident, assuming no single failure occurs. Therefore, the proposed TS change does not hazards consideration determination: As required by 10 CFR 50.91(a), the Also, additional redundant and diverse involve a significant reduction in a margin of equipment (normal control air, emergency safety. licensee has provided its analysis of the bottled nitrogen, and the valve hand wheels) Using the provisions of 10CFR50.59, issue of no significant hazards is available and expected to remain PSE&G will establish a method for consideration, which is presented functional to ensure the ADVs accomplish performing SRV acoustic monitor channel below: their function following an accident. The calibration that does not require reactor change does not create failure modes that steam pressure or SRV opening. This testing A. The proposed amendment does not involve a significant increase in the could adversely impact safety-related method will comply with the current TS equipment. Therefore, the change will not definition of CHANNEL CALIBRATION. probability or consequences of an accident previously evaluated. create the possibility of a malfunction of Since the notes associated with TS equipment important to safety different than Surveillance Requirement 4.4.2.1 (providing The addition of the 72 hour completion time and clarification to existing TS do not previously evaluated in the FSAR. Thus, the a compliance exception to the provisions of proposed amendment does not create the TS 4.0.4 to allow for proper reactor steam increase the probability of an accident previously evaluated since these changes do possibility of a new or different kind of pressure to perform the test and an allowance accident from any accident previously to perform noise level adjustments) are no not result in hardware or procedural changes which will affect probability of occurrence of evaluated. longer needed, their removal will not affect C. The proposed amendment does not plant operation or testing and will not an accident. The probability of an accident occurring during the 72 hour period as involve a significant reduction in a margin of involve a significant reduction in a margin of compared to the 24 hour completion time safety. safety. currently in the TS remains small. Further, The TS currently allow two or more ADVs The NRC staff has reviewed the addition of the 72 hour completion time and to be out of service for 24 hours, based on licensee’s analysis and, based on this clarification to existing TS does not increase low probability of an event occurring during review, it appears that the three the consequences of an accident previously the period which would require use of the standards of 10 CFR 50.92(c) are evaluated since sufficient equipment and ADVs, and based on availability of the steam satisfied. Therefore, the NRC staff procedures remain available to mitigate dump valves and the MSSVs [main steam proposes to determine that the accidents previously evaluated. With two safety valves]. Providing a 72 hour amendment request involves no ADVs inoperable under this LCO, two ADVs completion time specifically for loss of two ADV valves due to loss on one train of ACAS significant hazards consideration. remain in service. As indicated in the Applicable Safety Analysis of the TS Basis, to the ADVs does not significantly reduce the Local Public Document Room two valves are adequate to cool the unit to margin of safety since the probability of an location: Pennsville Public Library, 190 the RHR [residual heat removal] entry event occurring during the 72 hour period is S. Broadway, Pennsville, NJ 08070. conditions subsequent to accidents still small, and the capability exists to use the Attorney for licensee: Jeffrie J. Keenan, accompanied by a loss of offsite power. In inoperable ADVs by manually operating the Esquire, Nuclear Business Unit—N21, addition, as indicated in the background valves using the valve hand wheels, or by P.O. Box 236, Hancocks Bridge, NJ discussion of the Bases of 3.7.4, the ADVs connecting the valve nitrogen bottle system, 08038. can be operated by use of a bottled nitrogen which was designed to operate the valves NRC Project Director: Robert A. Capra. system designed to open the valves in the upon loss of air. In addition, the MSSVs, and event of loss of normal and emergency air the condenser steam dump valves would Tennessee Valley Authority, Docket No. supplies. The valves may also be operated normally also be available. Thus, the 50–390 Watts Bar Nuclear Plant, Unit 1, manually by using the valve hand wheels. proposed change does not significantly Rhea County, Tennessee Consequently, the two inoperable ADVs reduce the margin of safety. under this LCO are still expected to remain Further, the NRC staff notes that the Date of amendment request: February functional and could be placed in service and proposed change to the TS action statement 18, 1998. used to cool the steam generators, if for two or more ADV lines inoperable to 43214 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices require restoration of all but one of the four arrangement requirements for the storage Attorney for licensee: General ADV lines, instead of the previous racks. The potential keff values are Counsel, Tennessee Valley Authority, requirement to restore only one ADV line to maintained the same as the current TS 400 West Summit Hill Drive, ET l0H, operable status, is more restrictive and more requirements. In addition, the storage racks are not modified and the processes for Knoxville, Tennessee 37902. conservative than the action statement as NRC Project Director: Frederick J. currently written. The change also makes the loading and unloading fuel in these racks and action statement consistent with the existing the controls for these racks remain the same Hebdon. TS Bases in Section B 3.7.4, Action B.1. except for the storage limitations dictated by The Cleveland Electric Illuminating Accordingly, the staff proposes to find that the criticality analysis. Additional controls are required with appropriate verification to Company, Centerior Service Company, this proposed change does not involve a Duquesne Light Company, Ohio Edison significant increase in the probability or assure the fuel is stored within the analysis consequences of an accident previously assumptions. Handling procedures contain Company, Pennsylvania Power evaluated, does not create the possibility of additional steps to specifically verify Company, Toledo Edison Company, a new or different kind of accident from any prohibited cells remain empty after fuel Docket No. 50–440, Perry Nuclear Power accident previously evaluated, and does not movement. This verification assures that the Plant, Unit 1, Lake County, Ohio probability of a criticality event is not involve a significant reduction in a margin of Date of amendment request: July 13, safety. increased by the enrichment change. Since the keff limits and operating processes are 1998. The NRC staff has reviewed the unchanged by the proposed revision, there is Description of amendment request: licensee’s analysis and, based on this no increase in the probability of an accident The proposed license amendment review and the staff’s additional previously evaluated. Likewise, there is no would revise Perry Nuclear Power Plant assessment as provided above, it impact to the consequences of an accident or Technical Specification 3.4.4, ‘‘Safety/ appears that the three standards of 10 increase in offsite dose limits as a result of Relief Valves (S/RVs),’’ by increasing CFR 50.92(c) are satisfied. Therefore, the the proposed TS change because the the present [plus or minus] 1% criticality requirements are unchanged and NRC staff proposes to determine that the plant equipment will be utilized and tolerance on the safety mode lift amendment request involves no operated without change considering the fuel setpoint for the safety/relief valves to significant hazards consideration. storage location limits imposed by this [plus or minus] 3%. This change would Local Public Document Room request. be performed in accordance with location: Chattanooga-Hamilton County B. The proposed amendment does not General Electric Topical Report NEDC– Library, 1001 Broad Street, Chattanooga, create the possibility of a new or different 31753P, ‘‘BWROG In-Service Pressure TN 37402. kind of accident from any accident Relief Technical Specification Revision Attorney for licensee: General previously evaluated. Licensing Topical Report.’’ As stated above, the plant equipment and Basis for proposed no significant Counsel, Tennessee Valley Authority, operating processes will not be altered by the 400 West Summit Hill Drive, ET l0H, proposed TS change with the exception of hazards consideration determination: Knoxville, Tennessee 37902. allowed fuel storage locations in the new fuel As required by 10 CFR 50.91(a), the NRC Project Director: Frederick J. storage racks. The limitations on acceptable licensee has provided its analysis of the Hebdon. fuel storage locations in the racks ensure that issue of no significant hazards the k(effective) limits are maintained at the consideration which is presented below: Tennessee Valley Authority, Docket No. same limits as currently required. TVA has (1) The proposed change does not involve 50–390 Watts Bar Nuclear Plant, Unit 1, not postulated a criticality event at WBN for a significant increase in the probability or Rhea County, Tennessee the spent or new fuel storage locations consequences of an accident previously because the design of the associated storage identified. Date of amendment request: May 6, racks, potential moderation, and TS The proposed change allows an increase in 1998. allowable fuel enrichments do not support the as-found safety relief valve (SRV) safety Description of amendment request: the potential for this condition. Therefore, mode setpoint tolerance, determined by test The proposed amendment would this change does not create the potential for after the valves have been removed from a new accident from any previously modify the Watts Bar Nuclear Plant service, from [plus or minus] 1% to [plus or analyzed. (WBN) Technical Specifications (TSs) minus] 3%. The proposed change does not C. The proposed amendment does not by revising the allowed enrichment of alter the Technical Specification involve a significant reduction in a margin of fuel stored in the new fuel storage racks requirements on the nominal SRV safety safety. mode lift setpoints, the SRV relief mode from 4.3 to 5.0 weight percent uranium- The proposed TS change maintains the setpoints, the required frequency for the SRV 235 (U–235). The revision also places existing requirements for criticality by lift setpoint tests, or the number of SRVs limitations on fuel storage locations that utilizing limited storage locations in the new required to be operable. This change does not may be utilized in the storage racks and fuel pit storage racks. There is no change to involve physical changes to the SRVs, nor operating practices associated with the use provides additional limits on does it change the operating characteristics or k(effective) when flooded with and control of these racks except for the storage limitations. For these reasons, there safety function of the SRVs. unborated water. Consistent with current requirements, this Basis for proposed no significant will be no reduction in the margin [of] the safety as a result of implementing the change continues to require that the SRVs be hazards consideration determination: proposed TS change. adjusted to within [plus or minus] 1% of As required by 10 CFR 50.91(a), the their nominal lift setpoints following testing. licensee has provided its analysis of the The NRC staff has reviewed the This change does not change the behavior issue of no significant hazards licensee’s analysis and, based on this and operation of any SRV and therefore has consideration, which is presented review, it appears that the three no significant impact to reactor operation. It also has no significant impact on response to below: standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff any perturbation of reactor operation A. The proposed amendment does not proposes to determine that the including transients and accidents previously involve a significant increase in the analyzed in the Updated Safety Analysis probability or consequences of an accident amendment request involves no Report. In addition, this change does not previously evaluated. significant hazards consideration. change SRV actuation. Therefore, this change The proposed change to the allowed Local Public Document Room will not increase the probability of an enrichment of new fuel stored in the new location: Chattanooga-Hamilton County accident previously evaluated. fuel storage racks does not change the Library, 1001 Broad Street, Chattanooga, Generic considerations related to the criticality potential with the proposed fuel TN 37402. change in setpoint tolerance were addressed Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43215 in NEDC–31753P, ‘‘BWROG In-Service Local Public Document Room allow operation with a number of Pressure Relief Technical Specification location: Perry Public Library, 3753 indications previously identified as tube Revision Licensing Topical Report,’’ and Main Street, Perry, OH 44081. end anomalies and multiple tube end were reviewed and approved by the NRC. Attorney for licensee: Jay Silberg, Esq., The plant specific evaluations, required by anomalies in the CR3 Once Through the NRC’s Safety Evaluation for NEDC– Shaw, Pittman, Potts & Trowbridge, Steam Generator tubes. 31753P and performed to support this 2300 N Street, NW., Washington, DC Date of publication of individual proposed change, are contained in NEDC– 20037. notice in the Federal Register: June 30, 32307P, ‘‘Safety Review for PNPP Safety/ NRC Project Director: Ronald R. 1998 (63 FR 35615). Relief Valve Setpoint Tolerance Relaxation/ Bellamy (Acting). Expiration date of individual notice: Out-of-Service Analyses,’’ dated May 1994. July 15, 1998. These analyses and evaluations show that Previously Published Notices of Local Public Document Room there is adequate margin to the design core Consideration of Issuance of location: Coastal Region Library, 8619 thermal limits and to the reactor vessel Amendments To Facility Operating pressure limits using a [plus or minus] 3% W. Crystal Street, Crystal River, Florida Licenses, Proposed No Significant 32629. SRV setpoint tolerance. They also show that Hazards Consideration Determination, operation of the high pressure injection and Opportunity for a Hearing Northern States Power Company, systems will not be adversely affected; and Docket No. 50–263, Monticello Nuclear the containment response from a loss of The following notices were previously coolant accident will be acceptable. published as separate individual Generating Plant, Wright County, (2) The proposed change would not create notices. The notice content was the Minnesota the possibility of a new or different kind of same as above. They were published as Date of amendment request: June 19, accident from any accident previously 1998 (supersedes April 11, 1997, evaluated. individual notices either because time The proposed change to allow an increase did not allow the Commission to wait application), as supplemented July 1, in the SRV safety mode setpoint tolerance for this biweekly notice or because the 1998, and information provided in a from [plus or minus] 1% to [plus or minus] action involved exigent circumstances. letter of May 5, 1997. 3% does not alter the nominal SRV lift They are repeated here because the Brief description of amendment setpoints or the number of SRVs required to biweekly notice lists all amendments request: The proposed amendment be operable. This change does not involve issued or proposed to be issued would revise Section 3.6.C, Coolant physical changes to the SRVs, nor does it involving no significant hazards Chemistry, and 3/4.17.B, Control Room change the operating characteristics or the Emergency Filtration System, of the safety function of the SRVs. The proposed consideration. change does not involve a physical alteration For details, see the individual notice Technical Specifications (TS), of the plant. No new or different equipment in the Federal Register on the day and Appendix A of the Operating License is being installed. The proposed change does page cited. This notice does not extend for the Monticello Nuclear Generating not impact core reactivity nor the the notice period of the original notice. Plant. The changes were proposed to manipulation of fuel bundles. There is no establish TS requirements consistent alteration to the parameters within which the Duke Energy Corporation, Docket Nos. with modified analysis inputs used for plant is normally operated. As a result no 50–269, 50–270, and 50–287, Oconee the evaluation of the radiological new failure modes are being introduced. Nuclear Station, Units 1, 2, and 3, consequences of the main steam line There are no changes in the methods Oconee County, South Carolina governing normal plant operation, nor are the break accident. This amendment request methods utilized to respond to plant Date of amendment request: July 8, was originally noticed in the Federal transients altered. 1998. Register on May 6, 1998 (63 FR 25115). Therefore, the proposed change does not Description of amendment request: On June 19, 1998, supplemented July 1, create the possibility of a new or different The proposed amendments would allow 1998, the licensee submitted an kind of accident from any previously temporary noncompliance with the application that superseded in its evaluated. Penetration Room Ventilation System (3) The proposed change will not involve entirety the licensee’s previous a significant reduction in the margin of air flow surveillance requirements of submittal dated April 11, 1997. safety. Technical Specification 4.5.4.1.b.1 until Date of publication of individual The margin of safety is established through modifications can be completed to notice in Federal Register: July 28, 1998 the design of the plant structures, systems, support testing in accordance with (63 FR 40321). and components, the parameters within ANSI Standard N510–1975, as required Expiration date of individual notice: which the plant is operated, and the by the Technical Specifications. August 27, 1998. establishment of the setpoints for the Date of publication of individual Local Public Document Room actuation of equipment relied upon to notice in Federal Register: July 16, 1998 location: Minneapolis Public Library, respond to an event. The proposed change does not significantly impact the condition or (63 FR 38433). Technology and Science Department, performance of structures, systems, and Expiration date of individual notice: 300 Nicollet Mall, Minneapolis, components relied upon for accident August 17, 1998. Minnesota 55401. mitigation. The proposed change does not Local Public Document Room significantly impact any safety analysis location: Oconee County Library, 501 Union Electric Company, Docket No. assumptions or results. West South Broad Street, Walhalla, 50–483, Callaway Plant, Unit 1, Therefore, the proposed change does not South Carolina. Callaway County, Missouri involve a significant reduction in a margin of Date of application for amendment: safety. Florida Power Corporation, et al., February 24 1998, as supplemented by The NRC staff has reviewed the Docket No. 50–302, Crystal River Unit letter dated May 27, 1998. licensee’s analysis and, based on this No. 3 Nuclear Generating Plant, Citrus Brief description of amendment: The review, it appears that the three County, Florida amendment would support a standards of 10 CFR 50.92(c) are Date of application for amendment: modification to the Callaway Plant, Unit satisfied. Therefore, the NRC staff June 18, 1998. 1 to increase the storage capacity of the proposes to determine that the Brief description of amendment: spent fuel pool. amendment request involves no Amend the Crystal River Unit 3 (CR3) Date of individual notice in Federal significant hazards consideration. Improved Technical Specifications to Register: July 13, 1998 (63 FR 37598). 43216 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Expiration date of individual notice: made a determination based on that the Radiological Environmental August 12, 1998. assessment, it is so indicated. Monitoring Program to the Offsite Dose Local Public Document Room For further details with respect to the Calculation Manual, in accordance with location: University of Missouri- action see (1) the applications for the recommendations of Generic Letter Columbia, Elmer Ellis Library, amendment, (2) the amendment, and (3) 89–01. Changes are also being made to Columbia, Missouri 65201–5149. the Commission’s related letter, Safety other sections of the Technical Evaluation and/or Environmental Specifications to align them with Wolf Creek Nuclear Operating Assessment as indicated. All of these NUREG–1433, to minimize changes Corporation, Docket No. 50–482, Wolf items are available for public inspection when converting to the Improved Creek Generating Station, Coffey at the Commission’s Public Document Standard Technical Specifications. County, Kansas Room, the Gelman Building, 2120 L Date of issuance: July 31, 1998. Date of amendment request: March Street, NW., Washington, DC, and at the Effective date: As of the date of 20, 1998, as supplemented by letter local public document rooms for the issuance, to be implemented within 30 dated May 28, 1998. particular facilities involved. days. Brief description of amendment: The Amendment No.: 177. Boston Edison Company, Docket No. Facility Operating License No. DPR– amendment would support a 50–293, Pilgrim Nuclear Power Station, 35: Amendment revised the Technical modification to the Wolf Creek Nuclear Plymouth County, Massachusetts Specifications and the license. Generating Station, Unit 1 to increase Date of initial notice in Federal the storage capacity of the spent fuel Date of application for amendment: February 20, 1998. Register: February 25, 1998 (63 FR pool. 9591). Date of individual notice in Federal Brief description of amendment: This amendment changed the Pilgrim The Commission’s related evaluation Register: July 13, 1998 (63 FR 37601). of the amendment is contained in a Expiration date of individual notice: Nuclear Power Station Technical Specification (TS) 3/4.5.B and its Bases Safety Evaluation dated July 31, 1998. August 12, 1998. No significant hazards consideration to incorporate the ultimate heat sink Local Public Document Room ° comments received: No. locations: Emporia State University, (UHS) temperature of 75 F, as required Local Public Document Room William Allen White Library, 1200 by Amendment No. 173. The location: Plymouth Public Library, 11 Commercial Street, Emporia, Kansas introduction of a UHS temperature North Street, Plymouth, Massachusetts 66801 and Washburn University School restriction requires new specifications, 02360. of Law Library, Topeka, Kansas 66621. actions, and surveillances for the salt service water system. The amendment Carolina Power & Light Company, Notice of Issuance of Amendments to also replaced existing specification Docket No. 50–261, H. B. Robinson Facility Operating Licenses 3.5.B ‘‘Containment Cooling System’’ Steam Electric Plant, Unit No. 2, Darlington County, South Carolina During the period since publication of with new Specification 3/4.5.B.1 the last biweekly notice, the ‘‘Residual Heat Removal (RHR) Date of application for amendment: Commission has issued the following Suppression Pool Cooling’’, 3/4.5.B.2 June 26, 1998, as supplemented July 22, amendments. The Commission has ‘‘Residual Heat Removal (RHR) 1998. determined for each of these Containment Spray’’, 3/4.5.B.3 ‘‘Reactor Brief description of amendment: The amendments that the application Building Closed Cooling Water amendment revises Technical complies with the standards and (RBCCW) System’’, and 3/4.5.B.4 ‘‘Salt Specification (TS) 3.7.8, ‘‘Ultimate Heat requirements of the Atomic Energy Act Service Water (SSW) System and Sink (UHS),’’ to permit an 8-hour delay of 1954, as amended (the Act), and the Ultimate Heat Sink (UHS)’’. in the UHS temperature restoration Commission’s rules and regulations. Date of issuance: July 28, 1998. period prior to entering the plant Effective date: July 28, 1998. The Commission has made appropriate shutdown required actions. This TS Amendment No.: 176. amendment is given as a one-time findings as required by the Act and the Facility Operating License No. DPR– Commission’s rules and regulations in amendment change effective until 35: Amendment revised the Technical September 30, 1998, after which the TS 10 CFR Chapter I, which are set forth in Specifications. the license amendment. will revert back to the original TS Date of initial notice in Federal provisions. Notice of Consideration of Issuance of Register: April 8, 1998 (63 FR 17221). Date of issuance: July 29, 1998. Amendment to Facility Operating The Commission’s related evaluation Effective date: July 29, 1998. License, Proposed No Significant of the amendment is contained in a Amendment No.: 179. Hazards Consideration Determination, Safety Evaluation dated July 28, 1998. Facility Operating License No. DPR– and Opportunity for A Hearing in No significant hazards consideration 23. Amendment revised the Technical connection with these actions was comments received: No. Specifications. published in the Federal Register as Local Public Document Room Public comments requested as to indicated. location: Plymouth Public Library, 11 proposed no significant hazards Unless otherwise indicated, the North Street, Plymouth, Massachusetts consideration (NSHC): Yes (63 FR 36967 Commission has determined that these 02360. dated July 8, 1998). The notice provided amendments satisfy the criteria for an opportunity to submit comments on categorical exclusion in accordance Boston Edison Company, Docket No. the Commission’s proposed NSHC with 10 CFR 51.22. Therefore, pursuant 50–293, Pilgrim Nuclear Power Station, determination. No comments have been to 10 CFR 51.22(b), no environmental Plymouth County, Massachusetts received. The notice also provided for impact statement or environmental Date of application for amendment: an opportunity to request a hearing by assessment need be prepared for these September 19, 1997, as supplemented August 7, 1998, but indicated that if the amendments. If the Commission has June 15, 1998. Commission makes a final NSHC prepared an environmental assessment Brief description of amendment: The determination, any such hearing would under the special circumstances amendment relocates the Radioactive take place after issuance of the provision in 10 CFR 51.12(b) and has Effluent Technical Specifications and amendment. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43217

The Commission’s related evaluation Effective date: As of the date of Duquesne Light Company, et al., Docket of the amendment, finding of exigent issuance to be implemented within 30 Nos. 50–334 and 50–412, Beaver Valley circumstances, and final determination days. Power Station, Unit Nos. 1 and 2, of NSHC are contained in a Safety Amendment No.: 197. (BVPS–1 and BVPS–2) Shippingport, Evaluation dated July 29, 1998. Facility Operating License No. DPR– Pennsylvania Attorney for licensee: William D. 26: Amendment revised the Technical Date of application for amendments: Johnson, Vice President and Senior Specifications. June 19, 1998, as supplemented June 23, Counsel, Carolina Power & Light Date of initial notice in Federal 1998. Company, Post Office Box 1551, Register: January 28, 1998 (63 FR 4310). Brief description of amendments: Raleigh, North Carolina 27602. The September 25, 1997, letter These amendments revise the BVPS–1 NRC Project Director: P. T. Kuo, provided clarifying information that did and BVPS–2 Technical Specifications Acting. not change the initial proposed no (TSs) definitions of a channel significant hazards consideration. Commonwealth Edison Company, calibration to add two sentences stating The Commission’s related evaluation Docket Nos. 50–295 and 50–304, Zion that (1) the calibration of instrument of the amendment is contained in a Nuclear Power Station Units 1 and 2, channels with resistance temperature Safety Evaluation dated July 29, 1998. Lake County, Illinois detector or thermocouple sensors may No significant hazards consideration consist of an inplace qualitative Date of application for amendments: comments received: No. assessment of sensor behavior and March 30, 1998. Local Public Document Room normal calibration of the remaining Brief description of amendments: The location: White Plains Public Library, adjustable devices in the channel and amendments will (1) restore Custom 100 Martine Avenue, White Plains, New (2) whenever a sensing element is Technical Specifications (CTS) and the York 10610. replaced, the next required channel associated license conditions that had calibration shall include an inplace been replaced by Improved Technical Duke Energy Corporation, Docket Nos. 50–369 and 50–370, McGuire Nuclear cross calibration that compares the other Specifications (ITS), (2) change certain sensing elements with the recently management titles and responsibilities Station, Units 1 and 2, Mecklenburg County, North Carolina installed sensing element. This change to reflect the permanently shutdown makes the BVPS–1 and BVPS–2 TS condition of the plant, (3) allow use of Date of application for amendments: definition of channel calibration Certified Fuel Handlers in lieu of March 3, 1998, as supplemented by consistent with the definition of a licensed operators, (4) modify shift crew letters dated April 24, May 7, and July channel calibration contained in the composition, and (5) eliminate verbiage 22, 1998. NRC’s improved Standard Technical that imples the units are operational. Brief description of amendments: The Specifications for Westinghouse Plants Date of Issuance: July 24, 1998. amendments revise Figure 5.1–1 of the (NUREG–1431, Revision 1). Effective date: Immediately, to be Technical Specifications (TS) to show Date of Issuance: July 28, 1998. implemented within 30 days. the new location of the meteorological Effective date: Both units, effective Amendment Nos.: 179 & 166. tower. The meteorological tower will be immediately, to be implemented within Facility Operating License Nos. DPR– relocated to a new location to facilitate 30 days. 39 and DPR–48: The amendments use of the current location as a Amendment Nos.: 216 and 93. revised the Technical Specifications. construction site. The proposed TS Facility Operating License Nos. DPR– Date of initial notice in Federal change does not change the related TS 66 and NPF–73: Amendments revised Register: May 6, 1998 (63 FR 25105). Section 5.1.1. the Technical Specifications. The Commission’s related evaluation of Date of issuance: July 30, 1998. Date of initial notice in Federal the amendments is contained in a Safety Effective date: As of the date of Register: June 26, 1998 (63 FR 34939). Evaluation dated July 24, 1998. issuance to be implemented within 30 The June 23, 1998, letter provided No significant hazards consideration days. minor editorial changes to the TS pages comments received: No. Amendment Nos.: Unit 1—179; Unit that did not change the initial proposed Local Public Document Room 2—161. no significant hazards consideration location: Waukegan Public Library, 128 Facility Operating License Nos. NPF– determination or expand the N. County Street, Waukegan, Illinois 9 and NPF–17: Amendments revised the amendment request beyond the scope of 60085. Technical Specifications. the June 26, 1998 Federal Register Date of initial notice in Federal notice. Consolidated Edison Company of New Register: June 29, 1998 (63 FR 35293). York, Docket No. 50–247, Indian Point The Commission’s related evaluation The July 22, 1998, submittal provided of the amendments is contained in a Nuclear Generating Unit No. 2, clarifying information that did not Westchester County, New York Safety Evaluation dated July 28, 1998. change the scope of the March 3, 1998, No significant hazards consideration Date of application for amendment: application and the initial proposed no comments received: No. June 6, 1997, as supplemented significant hazards consideration Local Public Document Room September 25, 1997. determination. location: B. F. Jones Memorial Library, Brief description of amendment: The The Commission’s related evaluation 663 Franklin Avenue, Aliquippa, PA amendment revises Technical of the amendments is contained in a 15001. Specifications (TS) Table 4.1–2, Safety Evaluation dated July 30, 1998. Frequency for Sampling Tests, to delete No significant hazards consideration Florida Power Corporation, et al., the requirement to sample the spray comments received: No. Docket No. 50–302, Crystal River Unit additive tank and delete the Local Public Document Room No. 3 Nuclear Generating Plant, Citrus requirement for a sodium hydroxide location: J. Murrey Atkins Library, County, Florida (NaOH) spray additive in TS Section University of North Carolina at Date of application for amendment: 5.2.C.1. Charlotte, 9201 University City March 20, 1998, and supplemented May Date of issuance: July 29, 1998. Boulevard, Charlotte, North Carolina. 22, 1998. 43218 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Brief description of amendment: The Brief description of amendment: The Power Authority of the State of New amendment proposed to revise amendment revised the Technical York, Docket No. 50–333, James A. Improved Technical Specification Specifications to reflect the adoption of FitzPatrick Nuclear Power Plant, Safety Limits and Administrative the BWR Owner’s Group Long-Term Oswego County, New York Controls to replace the titles of the Solution Stability System Option 1–D in Date of application for amendment: Senior Vice President, Nuclear addressing reactor operation in or near December 12, 1997. Operations and the Vice President, a region of potential thermal hydraulic Brief description of amendment: The Nuclear Production with the position of instability. amendment revises the working hours Date of issuance: July 29, 1998. Chief Nuclear Officer. for operating personnel to allow 8- to Date of issuance: July 20, 1998. Effective date: July 29, 1998, to be 12-hour work days, nominal 40-hour Effective date: July 20, 1998. implemented within 30 days. Amendment No.: 168. Amendment No.: 177. weeks. In addition, associated changes Facility Operating License No. DPR– Facility Operating License No. DPR– are being made to surveillance intervals 72: Amendment revised the Technical 46: Amendment revised the Technical to maintain the same frequency. Specifications. Specifications. Date of issuance: July 24, 1998. Date of initial notice in Federal Date of initial notice in Federal Effective date: As of the date of Register: May 6, 1998 (63 FR 25109). Register: March 26, 1997 (62 FR 14462). issuance to be implemented within 30 The Commission’s related evaluation The December 26, 1997, July 16, and days. of the amendment is contained in a July 28, 1998, submittals provided Amendment No.: 244. Safety Evaluation dated July 20, 1998. clarifying information and an Facility Operating License No. DPR– No significant hazards consideration administrative change that did not alter 59: Amendment revised the Technical comments received: No. the initial proposed no significant Specifications. Local Public Document Room hazards consideration determination. Date of initial notice in Federal location: Coastal Region Library, 8619 The Commission’s related evaluation of Register: January 28, 1998 (63 FR 4321). W. Crystal Street, Crystal River, Florida the amendment is contained in a Safety The Commission’s related evaluation 34428. Evaluation dated July 29, 1998. of the amendment is contained in a No significant hazards consideration Safety Evaluation dated July 24, 1998. Florida Power and Light Company, et comments received: No. No significant hazards consideration al., Docket No. 50–389, St. Lucie Plant, Local Public Document Room comments received: No. Unit No. 2, St. Lucie County, Florida location: Auburn Memorial Library, Local Public Document Room Date of application for amendment: 1810 Courthouse Avenue, Auburn, NE location: Reference and Documents December 29, 1997, as supplemented by 68305. Department, Penfield Library, State June 15, 1998. Northern States Power Company, University of New York, Oswego, New Brief description of amendment: The Docket Nos. 50–282 and 50–306, Prairie York 13126. amendment will modify the Technical Island Nuclear Generating Plant, Units Specifications for selected cycle-specific Rochester Gas and Electric Corporation, 1 and 2, Goodhue County, Minnesota reactor physics parameters to refer to Docket No. 50–244, R. E. Ginna Nuclear the St. Lucie Unit 2 Core Operating Date of application for amendments: Power Plant, Wayne County, New York Limits Report for limiting values. January 15, 1998, as supplemented May Date of application for amendment: Date of Issuance: July 24, 1998. 29, 1998. March 31, 1997, as supplemented June Effective Date: July 24, 1998. Brief description of amendments: The 18, 1997, October 10, 1997, October 20, Amendment No.: 92. amendment allows a reduction in the 1997, November 11, 1997, December 22, Facility Operating License No. NPF– required number of incore 1997, January 15, 1998, January 27, 16: Amendment revised the Technical instrumentation detectors for the 1998, March 30, 1998, April 23, 1998, Specifications. remainder of Unit 1, Cycle 19 operation. April 27, 1998, May 8, 1998, and May Date of initial notice in Federal Date of issuance: July 28, 1998. 22, 1998. Register: February 11, 1998 (63 FR Effective date: July 28, 1998, with full Brief description of amendment: This 6985). implementation within 30 days. The June 15, 1998, supplement Amendment Nos.: 136. amendment changes the Technical provided clarifying information that did Facility Operating License Nos. DPR– Specifications to accommodate the not change the scope of the December 42 and DPR–60. Amendments revised modification of the spent fuel pool by 29, 1997 application and the initial the Technical Specifications. replacing the three Region 1 rack proposed no significant hazards Date of initial notice in Federal modules with seven new borated consideration determination. Register: January 30, 1998 (63 FR 4676) stainless steel rack modules scheduled The Commission’s related evaluation The May 29, 1998, supplement provided for implementation in 1998. Six new of the amendment is contained in a clarifying information within the scope peripheral modules would be added at Safety Evaluation dated July 24, 1998. of the Federal Register notice and did some future date. Two of the seven new No significant hazards consideration not change the staff’s initial proposed modules planned to be installed in 1998 comments received: No. no significant hazards considerations are to be designated as part of Region 2, Local Public Document Room determination. effectively increasing the Region 2 area. location: Indian River Community The Commission’s related evaluation The other five new modules compose College Library, 3209 Virginia Avenue, of the amendments is contained in a Region 1, resulting in a total of 294 Fort Pierce, Florida 34981–5596. Safety Evaluation dated July 28, 1998. storage positions in Region 1. Region 2, No significant hazards consideration with 1075 storage positions, consists of Nebraska Public Power District, Docket comments received: No. three rack types, Type 1, Type 2, and No. 50–298, Cooper Nuclear Station, Local Public Document Room Type 4. Type 1 cells are the Boraflex Nemaha County, Nebraska location: Minneapolis Public Library, cells that form Region 2 for the existing Date of amendment request: February Technology and Science Department, license. Two racks of Type 2 cells, 10, 1997, as supplemented December 300 Nicollet Mall, Minneapolis, containing borated stainless steel (BSS) 26, 1997, and July 16, and July 28, 1998. Minnesota 55401. absorber plates are be added to increase Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43219 the storage capacity of Region 2. In Brief description of amendments: The The May 27, 1998, submittal provided addition, the capacity of Region 2 could amendments change the Technical additional clarifying information and be increased in the future by the Specifications (TS) by revising the updated TS pages. This information was addition of Type 4 racks, which also surveillance requirements for the within the scope of the original Federal contain BSS absorber plates. The emergency diesel generators. Register notice and did not change the amendment increases the boron Date of issuance: July 22, 1998. staff’s initial no significant hazards concentration from 300 ppm to 2300 Effective date: To be implemented no considerations determination. ppm. later than 45 days after issuance. The Commission’s related evaluation Date of issuance: July 30, 1998. Amendment Nos.: Unit 1—234; Unit of the amendments is contained in a Effective date: July 30, 1998. 2—224. Safety Evaluation dated July 17, 1998. Amendment No.: 72. Facility Operating License Nos. DPR– No significant hazards consideration Facility Operating License No. DPR– 77 and DPR–79: Amendments revise the comments received: No. 18: Amendment revised the Technical TS. Local Public Document Room Specifications. Date of initial notice in Federal location: The Lester Public Library, Date of initial notice in Federal Register: April 8, 1998 (63 FR 17235). 1001 Adams Street, Two Rivers, Register: June 30, 1998 (63 FR 35617). The Commission’s related evaluation Wisconsin 54241. The May 8 and 22, 1998, letters of the amendment is contained in a provided clarifying information that did Safety Evaluation dated July 22, 1998. Wisconsin Electric Power Company, not change the proposed no significant No significant hazards consideration Docket Nos. 50–266 and 50–301, Point hazards consideration. comments received: No. Beach Nuclear Plant, Unit 2, Town of The Commission’s related evaluation Local Public Document Room Two Creeks, Manitowoc County, of the amendment is contained in a location: Chattanooga-Hamilton County Wisconsin Library, 1001 Broad Street, Chattanooga, Safety Evaluation dated July 30, 1998. Date of application for amendments: Tennessee 37402. No significant hazards consideration May 15, 1998 (TSCR 205, NPL–98– comments received: No. Wisconsin Electric Power Company, 0303). Local Public Document Room Docket Nos. 50–266 and 50–301, Point Brief description of amendment: This location: Rochester Public Library, 115 Beach Nuclear Plant, Units 1 and 2, amendment revises the schedule for South Avenue, Rochester, New York Town of Two Creeks, Manitowoc implementing the boron concentration 14610. County, Wisconsin changes from refueling outage 24 to Southern Nuclear Power Company, Inc., Date of application for amendments: refueling outage 23 for the planned et al. Docket Nos. 50–424 and 50–425, May 2, 1995, as supplemented October conversion of Unit 2 to 18-month fuel Vogtle Electric Generating Plant (VEGP), 12, 1995, March 26, 1996, December 15, cycles. Units 1 and 2, Burke County, Georgia 1997, and May 27, 1998 (TSCR 172). Date of issuance: July 21, 1998. Date of application for amendments: Brief description of amendments: Effective date: July 21, 1998, with full May 8, 1998. These amendments revise the Technical implementation within 45 days. Brief description of amendments: The Specifications (TS) Table 15.4.1–1, Amendment No.: 190. amendments revise VEGP Technical ‘‘Minimum Frequencies For Checks, Facility Operating License No. DPR– Specification 5.5.7, ‘‘Reactor Coolant Calibrations, and Tests Of Instrument 27: Amendment revised the Technical Pump Flywheel Inspection Program,’’ to Channels,’’ to change the test frequency Specifications. Date of initial notice in Federal provide an exception to the examination of the containment high range radiation Register: June 17, 1998 (63 FR 33111). requirements of Regulatory Position monitor, revise note 7, and revise item The Commission’s related evaluation C.4.b of Regulatory Guide 1.14, Revision 36 to clarify which monitors in the of the amendment is contained in a 1, dated August 1975. radiation monitoring system support Date of issuance: July 21, 1998. current TS or meet the requirements of Safety Evaluation dated July 21, 1998. Effective date: As of the date of 10 CFR 50.36. In addition several No significant hazards consideration issuance to be implemented within 30 administrative changes to referenced TS comments received: No. days. sections and plant system titles were Local Public Document Room Amendment Nos.: Unit 1—103; Unit made to correct omissions from location: The Lester Public Library, 2—81. previous amendments. 1001 Adams Street, Two Rivers, Facility Operating License Nos. NPF– Date of issuance: July 17, 1998. Wisconsin 54241. 68 and NPF–81: Amendments revised Effective date: July 17, 1998. The TS Wolf Creek Nuclear Operating the Technical Specifications. are to be implemented within 45 days Corporation, Docket No. 50–482, Wolf from the date of issuance. Date of initial notice in Federal Creek Generating Station, Coffey Implementation shall also include Register: June 17, 1998 (63 FR 33108). County, Kansas The Commission’s related evaluation relocation of certain TS requirements to of the amendments is contained in a licensee-controlled documents, as Date of amendment request: July 17, Safety Evaluation dated July 21, 1998. described in the licensee’s application 1998. No significant hazards consideration dated May 2, 1995, as supplemented Brief description of amendment: The comments received: No. October 12, 1995, March 26, 1996, amendment revised Technical Local Public Document Room December 15, 1997, and May 27, 1998, Specification 3/4.7.5, Ultimate Heat location: Burke County Library, 412 and evaluated in the staff’s safety Sink, by adding a new Action Statement Fourth Street, Waynesboro, Georgia. evaluation attached to these to be used in the event that plant inlet water temperature exceeds 90 degrees F. Tennessee Valley Authority, Docket amendments. Amendment Nos.: 185 and 189. Date of issuance: July 18, 1998. Nos. 50–327 and 50–328, Sequoyah Facility Operating License Nos. DPR– Effective date: July 18, 1998. Nuclear Plant, Units 1 and 2, Hamilton 24 and DPR–27: Amendments revised Amendment No.: 118. County, Tennessee the Technical Specifications. Facility Operating License No. NPF– Date of application for amendments: Date of initial notice in Federal 42: The amendment revised the February 25, 1998 (TS 97–06). Register: May 6, 1998 (63 FR 25122). Technical Specifications. 43220 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

Public comments requested as to amendment is contained in a Safety hearing by writing to the SEC’s proposed no significant hazards Evaluation dated July 21, 1998. Secretary and serving CIBC with a copy consideration: No. No significant hazards consideration of the request, personally or by mail. The Commission’s related evaluation comments received: No. Hearing requests should be received by of the amendment, finding of emergency Local Public Document Room the SEC by 5:30 p.m. on August 31, circumstances, and final determination locations: Emporia State University, 1998, and should be accompanied by of no significant hazards consideration William Allen White Library, 1200 proof of service on CIBC, in the form of are contained in a Safety Evaluation Commercial Street, Emporia, Kansas an affidavit, or, for lawyers, a certificate dated July 18, 1998. 66801 and Washburn University School of service. Hearing requests should state Attorney for licensee: Jay Silberg, Esq., of Law Library, Topeka, Kansas 66621. the nature of the writer’s interest, the Shaw, Pittman, Potts & Trowbridge, Dated at Rockville, Maryland, this 5th day reason for the request, and the issues 2300 N Street, NW, Washington, D.C. of August 1998. contested. Persons may request 20037. For the Nuclear Regulatory Commission. notification of a hearing by writing to Local Public Document Room Elinor G. Adensam, the SEC’s Secretary. locations: Emporia State University, Acting Director, Division of Reactor Projects— ADDRESSES: Secretary, SEC, 450 Fifth William Allen White Library, 1200 III/IV, Office of Nuclear Reactor Regulation. Street, NW, Washington, DC 20549. Commercial Street, Emporia, Kansas [FR Doc. 98–21724 Filed 8–11–98; 8:45 am] CIBC Oppenheimer Corp., CIBC 66801 and Washburn University School BILLING CODE 7590±01±P Oppenheimer Tower, World Financial of Law Library, Topeka, Kansas 66621. Center, New York, New York 0281. Wolf Creek Nuclear Operating Copy to Thomas A. McGavin, Jr., Esq., Corporation, Docket No. 50–482, Wolf SECURITIES AND EXCHANGE Rogers & Wells LLP, 200 Park Avenue, Creek Generating Station, Coffey COMMISSION New York, New York 10166. County, Kansas FOR FURTHER INFORMATION CONTACT: [Rel. No. IC±23380; 812±11216] Brian T. Hourihan, Senior Counsel, at Date of amendment request: March (202) 942–0526, or Mary Kay Frech, 24, 1995, as supplemented by letters CIBC Oppenheimer Corp.; Notice of Application Branch Chief, at (202) 942–0564 dated July 26, 1995, and September 5, (Division of Investment Management, 1996. August 5, 1998. Office of Investment Company Brief description of amendment: The AGENCY: Securities and Exchange Regulation). amendment adds a new action Commission (‘‘Commission’’ or ‘‘SEC’’). SUPPLEMENTARY INFORMATION: statement to Technical Specification The ACTION: Notice of application for an (TS) 3.5.1 which provides a 72-hour following is a summary of the order under section 12(d)(1)(J) of the allowed outage time (AOT) for one application. The complete application Investment Company Act of 1940 (the accumulator to be inoperable because its may be obtained for a fee from the SEC’s ‘‘Act’’) for an exemption from section boron concentration did not meet the Public Reference Branch, 450 Fifth 12(d)(1) of the Act, under section 6(c) of 2300–2500 parts per million band. In Street, NW, Washington, DC. 20549 (tel. the Act for an exemption from section addition, TS surveillance requirements (202) 942–8090). 14(a) of the Act, and under section 17(b) are changed to incorporate the guidance of the Act for an exemption from section Applicant’s Representations of Generic Letter 93–05, ‘‘Line-Item 17(a) of the Act. 1. Each Trust will be a limited-life, Technical Specifications Improvements grantor trust registered under the Act as to Reduce Surveillance Requirements SUMMARY OF APPLICATION: CIBC a non-diversified, closed-end for Testing During Operation’’ that is Oppenheimer Corp. (‘‘CIBC’’) requests management investment company. CIBC applicable to the accumulators, and the an order with respect to the REDSS will serve as a principal underwriter (as TS Bases section for TS 3/4.5.1 is trusts (‘‘REDSS Trusts’’) and future defined in section 2(a)(29) of the Act) of revised to reflect the changes described trusts that are substantially similar to the Securities issued to the public by above. Instrumentation surveillance the REDSS Trusts and for which CIBC each Trust. requirements associated with the will serve as a principal underwriter 2. Each Trust will, at the time of its accumulator are being relocated from (collectively, the ‘‘Trusts’’) that would issuance of Securities, (i) enter into one the technical specifications to Chapter (i) permit other registered investment or more forward purchase contracts (the 16 of the Updated Safety Analysis companies, and companies excepted ‘‘Contracts’’) with a counterparty to Report. from the definition of investment purchase a formulaically-determined Date of issuance: July 21, 1998. company under section 3(c)(1) or (c)(7) number of a specified equity security or Effective date: July 21, 1998, to be of the Act, to own a greater percentage securities (the ‘‘Shares’’) of one implemented within 30 days from the of the total outstanding voting stock (the specified issuer,1 and (ii) in some cases, date of issuance. ‘‘Securities’’) of any Trust than that purchase certain U.S. Treasury Amendment No.: 119. permitted by section 12(d)(1), (ii) securities (‘‘Treasuries’’), which may Facility Operating License No. NPF– exempt the Trusts from the initial net include interest-only or principal-only 42. The amendment revised the worth requirements of section 14(a), and securities maturing at or prior to the Operating License and Technical (iii) permit the Trusts to purchase U.S. Trust’s termination. The Trusts will Specifications. government securities from CIBC at the purchase the Contracts from Date of initial notice in Federal time of a Trust’s initial issuance of counterparties that are not affiliated Register: April 12, 1995 (60 FR 18632). Securities. The July 26, 1995, and September 5, FILING DATES: The application was filed 1 Initially, no Trust will hold Contracts relating to 1996, supplemental letters provided on July 8, 1998. the Shares of more than one issuer. However, if additional clarifying information and Hearing or Notification of Hearing: An certain events specified in the Contracts occur, such as the issuer of Shares spinning-off securities of did not change the initial no significant order granting the application will be another issuer to the holders of the Shares, the hazards consideration. The issued unless the SEC orders a hearing. Trust may receive shares of more than one issuer Commission’s related evaluation of the Interested persons may request a at the termination of the Contracts. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43221 with either the relevant Trust or CIBC. Trust. A bank qualified to serve as a the Shares at the time the Trust is The investment objective of each Trust trustee under the Trust Indenture Act of liquidated. will be to provide to each holder of 1939, as amended, will act as custodian 9. Each Trust will be structured so Securities (‘‘Holder’’) (i) current cash for each Trust’s assets and as that its organizational and ongoing distributions from the proceeds of any administrator, paying agent, registrar, expenses will not be borne by the Treasuries, and (ii) participation in, or and transfer agent with respect to the Holders, but rather, directly or limited exposure to, changes in the Securities of each Trust. The bank will indirectly, by CIBC, the counterparties, market value of the underlying Shares. have no other affiliation with, and will or another third party, as will be 3. In all cases, the Shares will trade not be engaged in any other transaction described in the prospectus for the in the secondary market and the issuer with, any Trust. The day-to-day relevant Trust. At the time of the of the Shares will be a reporting administration of each Trust will be original issuance of the Securities of any company under the Securities Exchange carried out by CIBC or the bank. Trust, there will be paid to each of the Act of 1934. The number of Shares, or 6. The Trusts will be structured so administrator, the custodian, and the the value of the Shares, that will be that the trustees are not authorized to paying agent, and to each trustee, a one- delivered to a Trust pursuant to the sell the Contracts or Treasuries under time amount in respect of such agent’s Contracts may be fixed (e.g., one Share any circumstances or only upon the fee over its term. Any expenses of the per Security issued) or may be occurrence of certain events under a Trust in excess of this anticipated determined pursuant to a formula, the Contract. The Trusts will hold the amount will be paid as incurred by a product of which will vary with the Contracts until maturity or any earlier party other than the Trust itself (which price of the Shares. A formula generally acceleration, at which time they will be party may be CIBC). will result in each Holder of Securities settled according to their terms. receiving fewer Shares as the market However, in the event of the bankruptcy Applicant’s Legal Analysis value of the Shares increases, and more or insolvency of any counterparty to a A. Section 12(d)(1) Shares as their market value decreases.2 Contract with a Trust, or the occurrence At the termination of each Trust, each of certain other events provided for in 1. Section 12(d)(1)(A)(i) of the Act Holder will receive the number of the Contract, the obligations of the prohibits (i) any registered investment Shares per Security, or the value of the counterparty under the Contract may be company from owning in the aggregate Shares, as determined by the terms of accelerated and the available proceeds more than 3% of the total outstanding the Contracts, that is equal to the of the Contract will be distributed to the voting stock of any other investment Holder’s pro rata interest in the Shares Holders. company, and (ii) any investment or amount received by the Trust under 7. The trustees of each Trust will be company from owning in the aggregate the Contracts.3 selected initially by CIBC, together with more than 3% of the total outstanding 4. Securities issued by the Trusts will any other initial Holders, or by the voting stock of any registered be listed on a national securities grantors of the Trust. The Holders of investment company. A company that is exchange or traded on The Nasdaq each Trust will have the right, upon the excepted from the definition of National Market System. Thus, the declaration in writing or vote of more investment company under section Securities will be ‘‘national market than two-thirds of the outstanding 3(c)(1) or (C)(7) of the Act is deemed to system’’ securities subject to public Securities of the Trust, to remove a be an investment company for purposes price quotation and trade reporting trustee. Holders will be entitled to a full of section 12(d)(1)(A)(i) of the Act under requirements. After the Securities are vote for each Security held on all sections 3(c)(1) and (c)(7)(D) of the Act. issued, the trading price of the matters to be voted on by Holders and Section 12(d)(1)(C) of the Act similarly Securities is expected to vary from time will not be able to cumulate their votes prohibits any investment company, to time based primarily upon the price in the election of trustees. The other investment companies having the of the underlying Shares, interest rates, investment objectives and policies of same investment adviser, and and other factors affecting conditions each Trust may be changed only with companies controlled by such and prices in the debt and equity the approval of a ‘‘majority of the investment companies from owning markets. CIBC currently intends, but Trust’s outstanding Securities’’ 4 or any more than 10% of the total outstanding will not be obligated, to make a market greater number required by the Trust’s voting stock of any closed-end in the Securities of each Trust. constituent documents. Unless Holders investment company. 5. Each Trust will be internally so request, it is not expected that the 2. Section 12(d)(1)(J) of the Act managed by three trustees and will not Trusts will hold any meetings of provides that the SEC may exempt have a separate investment adviser. The Holders, or that Holders will ever vote. persons or transactions from any trustees will have limited or no power 8. The Trusts will not be entitled to provision of section 12(d)(1), if, and to to vary the investments held by each any rights with respect to the Shares the extent that, the exemption is until any Contracts requiring delivery of consistent with the public interest and 2 A formula is likely to limit the Holder’s the Shares to the Trust are settled, at protection of investors. participation in any appreciation of the underlying which time the Shares will be promptly 3. CIBC believes, in order for the Shares, and it may, in some cases, limit the Holder’s distributed to Holders. The Holders, Trusts to be marketed most successfully, exposure to any depreciation in the underlying Shares. It is anticipated that the Holders will therefore, will not be entitled to any and to be traded at a price that most receive a yield greater than the ordinary dividend rights with respect to the Shares accurately reflects their value, that it is yield on the Shares at the time of the issuance of (including voting rights or the right to necessary for the Securities of each the Securities, which is intended to compensate receive any dividends or other Trust to be offered to large investment Holders for the limit on the Holders’ participation in any appreciation of the underlying Shares. In distributions) until receipt by them of companies and investment company some cases, there may be an upper limit on the complexes. CIBC states that these value of the Shares that a Holder will ultimately 4 A ‘‘majority of the Trust’s outstanding investors seek to spread the fixed costs receive. Securities’’ means the lesser of (i) 67% of the of analyzing specific investment 3 The contracts may provide for an option on the Securities represented at a meeting at which more part of a counterparty to deliver Shares, cash, or a than 50% of the outstanding Securities are opportunities by making sizable combination of Shares and cash to the Trust at the represented, and (ii) more than 50% of the investments of those opportunities. termination of each Trust. outstanding Securities. Conversely, CIBC asserts that it may not 43222 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices be economically rational for the other third parties. Thus, a Holder will 3. CIBC states that, in order to ensure investors, or their advisers, to take the not pay duplicative charges to purchase that each Trust will become a going time to review an investment securities in any Trust. Finally, there concern, the Securities of each Trust opportunity if the amount that the will be no duplication of advisory fees will be publicly offered in a firm investors would ultimately be permitted because the Trusts will be internally commitment underwriting, registered to purchase is immaterial in light of the managed by their trustees. under the Securities Act of 1933, total assets of the investment company 7. CIBC believes that the investment resulting in net proceeds to each Trust or investment company complex. product offered by the Trusts serves a of at least $10,000,000. Prior to the Therefore, CIBC argues that these valid business purpose. The Trusts, issuance and delivery of the Securities investors should be able to acquire unlike most registered investment of each Trust to the underwriters, the Securities in each Trust in excess of the companies, are not marketed to provide underwriters will enter into an limitations imposed by sections investors with either professional underwriting agreement pursuant to 12(d)(1)(A)(i) and 12(d)(1)(C). CIBC investment asset management or the which they will agree to purchase the requests that the SEC issue an order benefits of investment in a diversified Securities subject to customery under section 12(d)(1)(J) exempting the pool of assets. Rather, CIBC asserts that conditions to closing. The underwriters Trusts from the limitations. the Securities are intended to provide will not be entitled to purchase less 4. CIBC states that section 12(d)(1) Holders with an investment having than all of the Securities of each Trust. was designed to prevent one investment unique payment and risk characteristics, Accordingly, CIBC states that either the company from buying control of other including an anticipated higher current offering will not be completed at all or investment companies and creating yield than the ordinary dividend yield each Trust will have a net worth complicated pyramidal structures. CIBC on the Shares at the time of the issuance substantially in excess of $100,000 on also states that section 12(d)(1) was of the Securities. the date of the issuance of the intended to address the layering of costs 8. CIBC believes that the purposes and Securities. CIBC also does not anticipate to investors. policies of section 12(d)(1) are not that the net worth of the Trusts will fall 5. CIBC believes that the concerns implicated by the Trusts and that the below $100,000 before they are about pyramiding and undue influence requested exemption from section terminated. generally do not arise in the case of the 12(d)(1) is consistent with the public 4. Section 6(c) of the Act provides that Trusts because neither the trustees nor interest and the protection of investors. the SEC may exempt persons or the Holders will have the power to vary B. Section 14(a) transactions if, and to the extent that, the investments held by each Trust or to the exemption is necessary or acquire or dispose of the assets of the 1. Section 14(a) of the Act requires, in appropriate in the public interest and Trusts. To the extent that Holders can pertinent part, that an investment consistent with the protection of change the composition of the board of company have a net worth of at least investors and the purposes fairly trustees or the fundamental policies of $100,000 before making any public intended by the policy and provisions of each Trust by vote, CIBC argues that any offering of its shares. The purpose of the Act. CIBC requests that the SEC concerns regarding undue influence will section 14(a) is to ensure that issue an order under section 6(c) be eliminated by a provision in the investment companies are adequately exempting the Trusts from the charter documents of the Trusts that capitalized prior to or simultaneously requirements of section 14(a). CIBC will require any investment companies with the sale of their securities to the believes that the exemption is owning voting stock of any Trust in public. Rule 14a–3 exempts from appropriate in the public interest and excess of the limits imposed by sections section 14(a) unit investment trusts that consistent with the protection of 12(d)(1)(A)(i) and 12(d)(1)(C) to vote meet certain conditions in recognition investors and the policies and their Securities in proportion to the of the fact that, once the units are sold, provisions of the Act. votes of all other Holders. CIBC also a unit investment trust requires much believes that the concern about undue less commitment on the part of the C. Section 17(a) influence through a threat to redeem sponsor than does a management 1. Sections 17(a) (1) and (2) of the Act does not arise in the case of the Trusts investment company. Rule 14a–3 generally prohibit the principal because the Securities will not be provides that a unit investment trust underwriter, or any affiliated person of redeemable. investing in eligible trust securities shall the principal underwriter, of a 6. Section 12(d)(1) also was designed be exempt from the net worth registered investment company from to address the excessive costs and fees requirement, provided that the trust selling or purchasing any securities to or that may result from multiple layers of holds at least $100,000 of eligible trust from that investment company. The investment companies. CIBC believes securities at the commencement of a result of these provisions is to preclude that these concerns do not arise in the public offering. the Trusts from purchasing Treasuries case of the Trusts because of the limited 2. CIBC argues that, while the Trusts from CIBC. ongoing fees and expenses incurred by are classified as management 2. Section 17(b) of the Act provides the Trusts and because generally these companies, they have the characteristics that the SEC shall exempt a propsed fees and expenses will be borne, directly of unit investment trusts. Investors in transaction from section 17(g) if or indirectly, by CIBC or another third the Trusts, like investors in a unit evidence establishes that the terms of party, not by the Holders. In addition, investment trust, will not be purchasing the proposed transaction are reasonable the Holders will not, as a practical interests in a managed pool of and fair and do not involve matter, bear the organizational expenses securities, but rather in a fixed and overreaching, and the proposed (including underwriting expenses) of disclosed portfolio that is held until transaction is consistent with the the Trusts. CIBC asserts that the maturity. CIBC believes that the make- policies of the registered investment organizational expenses effectively will up of each Trust’s assets, therefore, will company involved and the purposes of be borne by the counterparties in the be ‘‘locked-in’’ for the life of the the Act. CIBC requests an exemption form of a discount in the price paid to portfolio, and there is no need for an from sections 17(a)(1) and (2) to permit them for the Contracts, or will be borne ongoing commitment on the part of the the Trusts to purchase Treasuries from directly by CIBC, the counterparties, or underwriter. CIBC. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43223

3. CIBC states that the policy rationale the limits imposed by section 12(d)(1) of two other independent government underlying section 17(a) is the concern the Act will be required by the Trust’s securities dealers. Competitive that an affiliated person of an charter documents, or will undertake, to quotation information must include investment company, by virtue of this vote its Trust shares in proportion to the price and settlement terms. These relationship, could cause the investment vote of all other Holders. dealers must be those who, in the company to purchase securities of poor 2. The trustees of each Trust, experience of the Trust’s trustees, have quality from the affiliated person or to including a majority of the trustees who demonstrated the consistent ability to overpay for securities. CIBC argues that are not interested persons of the Trust, provide professional execution of it is unlikely that it would be able to (1) will adopt procedures that are Treasury transactions at competitive exercise any adverse influence over the reasonably designed to provide that the market prices. They also must be those Trusts with respect to purchases of conditions set forth below have been who are in a position to quote favorable Treasuries because Treasuries do not complied with; (ii) will make and prices. approve such changes as are deemed vary in quality and are traded in one of For the Commission, by the Division of the most liquid markets in the world. necessary; and (iii) will determine that Investment Management, pursuant to Treasuries are available through both the transactions made pursuant to the delegated authority. primary and secondary dealers, making order were effected in compliance with Jonathan G. Katz, the Treasury market very competitive. such procedures. Secretary. In addition, market prices on Treasuries 3. The Trusts (i) will maintain and can be confirmed on a number of preserve in an easily accessible place a [FR Doc. 98–21593 Filed 8–11–98; 8:45 am] commercially available information written copy of the procedures (and any BILLING CODE 8010±01±M screens. CIBC argues that because it is modifications to the procedures), and one of a limited number of primary (ii) will maintain and preserve for the SECURITIES AND EXCHANGE dealers in Treasuries, it will be able to longer of (a) the life of the Trusts and COMMISSION offer the Trusts prompt execution of (b) six years following the purchase of their Treasury purchases at very any Treasuries, the first two years in an competitive prices. easily accessible place, a written record [Investment Company Act Release No. 4. CIBC states that it is only seeking of all Treasuries purchased, whether or 23381, 812±10990] relief from section 17(a) with respect to not from CIBC, setting forth a the initial purchase of the Treasuries description of the Treasuries purchased, Morgan Stanley, Dean Witter, Discover and not with respect to an ongoing the identity of the seller, the terms of & Co., et al.; Notice of Application course of business. Consequently, the purchase, and the information or August 6, 1998. investors will know before they materials upon which the AGENCY: Securities and Exchange purchase a Trust’s Securities the determinations described below were Commission (‘‘SEC’’). Treasuries that will be owned by the made. Trust and the amount of the cash 4. The Treasuries to be purchased by ACTION: Notice of application under (a) payments that will be provided each Trust will be sufficient to provide sections 6(c) and 17(b) of the Investment periodically by the Treasuries to the payments to Holders of Securities that Company Act of 1940 (the ‘‘Act’’) Trust and distributed to Holders. CIBC are consistent with the investment requesting an exemption from section also asserts that whatever risk there is objectives and policies of the Trust as 17(a) of the Act; (b) section 6(c) of the of overpricing the Treasuries will be recited in the Trust’s registration Act requesting an exemption from borne by the counterparties and not by statement and will be consistent with section 17(e) of the Act and rule 17e–1 the Holders because the cost of the the interests of the Trust and the under the Act; and (c) section 10(f) of Treasuries will be calculated into the Holders of its Securities. the Act requesting an exemption from amount paid on the Contracts. CIBC 5. The terms of the transactions will section 10(f) and rule 10f–3 under the argues that, for this reason, the be reasonable and fair to the Holders of Act. counterparties will have a strong the Securities issued by each Trust and incentive to monitor the price paid for will not involve overreaching of the SUMMARY OF APPLICATION: Applicants the Treasuries, because any Trust or the Holders of Securities of the request an order to permit registered overpayment could result in a reduction Trust on the part of any person open-end investment companies that in the amount that they would be paid concerned. have one or more investment advisers on the Contracts. 6. The fee, spread, or other and for which Morgan Stanley Asset 5. CIBC believes that the terms of the remuneration to be received by CIBC Management (‘‘MSAM’’) or Miller, proposed transaction are reasonable and will be reasonable and fair compared to Anderson & Sherred, LLP (‘‘MA&S’’) fair and do not involve overreaching on the fee, spread, or other remuneration acts as an investment adviser, to engage the part of any person, that the proposed received by dealers in connection with in certain principal and brokerage transaction is consistent with the policy comparable transactions at such time, transactions with Morgan Stanley, Dean of each of the Trusts, and that the and will comply with section 17(e)(2)(C) Witter, Discover & Co. (‘‘MSDWD’’) and requested exemption is appropriate in of the Act. to purchase securities in certain the public interest and consistent with 7. Before any Treasuries are underwritings. The transactions would the protection of investors and purposes purchased by the Trust, the Trust must be between MSDWD, or a member of an fairly intended by the policies and obtain such available market underwriting syndicate in which provisions of the Act. information as it deems necessary to MSDWD is a participant, and those determine that the price to be paid for, portions of the investment companies’ Applicant’s Conditions and the terms of, the transaction are at portfolios that are not advised by CIBC agrees that the order granting least as favorable as that available from MSAM or MA&S. The order also would the requested relief will be subject to the other sources. This will include the permit the investment companies not to following conditions: Trust obtaining and documenting the aggregate certain purchases from an 1. Any investment company owning competitive indications with respect to underwriting syndicate in which voting stock of any Trust in excess of the specific proposed transaction from MSDWD is a principal underwriter. 43224 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

APPLICANTS: AMR Investment Services Services, Inc. and is a ‘‘master fund’’ control any Portfolio for which an Trust (‘‘AMR Trust’’), Variable Annuity with several feeder funds. Variable MSDWD Adviser acts as Subadviser. Portfolios, MSDWD, MSAM, and MA&S. Annuity Portfolios is advised by 5. Applicants request relief to permit FILING DATE: The application was filed Citibank, N.A. MSAM currently serves (a) Unaffiliated Portions to engage in on February 3, 1998. Applicants have as a subadviser to a portion of one principal transactions with Affiliated ageeed to file an amendment, the portfolio of AMR Trust and MA&S Broker-Dealers and to purchase substance of which is incorporated in currently serves as a subadviser to a securities in an underwriting in which this notice, during the notice period. portion of several portfolios of the an Affiliated Broker-Dealer acts as a HEARING OR NOTIFICATION OF HEARING: An Variable Annuity Portfolios, each of principal underwriter. (b) Unaffiliated order granting the application will be which are otherwise unaffiliated with Portions to engage in brokerage issued unless the SEC orders a hearing. MSAM, MA&S, or MSDWD (the transactions with Affiliated Broker- Interested persons may request a ‘‘Portfolios’’). In each case, the other Dealers, when the Affiliated Broker- hearing by writing to the SEC’s portions are advised by investment Dealer acts as broker in the ordinary Secretary and serving applicants with a subadvisers (‘‘Subadvisers’’) that are not course of business, without complying copy of the request, personally or by affiliated persons, or affiliated persons with subsections (b) and (c) of rule 17e- of an affiliated person, of MSDWD mail. Hearing requests should be 1 under the Act, and (c) portions of (each, an ‘‘Unaffiliated Subadviser,’’ and received by the SEC by 5:30 p.m. on Portfolios advised by an MSDWD each portion, an ‘‘Unaffiliated August 31, 1998, and should be Adviser (‘‘Affiliated Portions’’) to Portion’’).1 accompanied by proof of service on purchase securities in an underwriting applicants, in the form of an affidavit or, 3. Applicants request that the relief without aggregating that Portion’s for lawyers, a certificate of service. apply to any registered open-end purchase with purchases of Unaffiliated Hearing requests should state the nature investment company for which MSAM, Portions as required by rule 10f-3(b)(7) of the writer’s interest, the reason for the MA&S, or any entity controlled by, under the Act. request and the issues contested. controlling, or under common control Persons may request notification of a with MSDWD now or in the future acts Applicants’ Legal Analysis hearing by writing to the SEC’s as investment adviser (collectively with A. Principal Transactions Between Secretary. MSAM and MA&S, ‘‘MSDWD Unaffiliated Portions and Affiliated ADDRESSES: Secretary, SEC, 450 Fifth Advisers’’).2 Applicants also request Broker-Dealers Street, N.W., Washington, D.C. 20549. relief for any broker-dealer controlling, Applicants: AMR Trust, 4333 Amon controlled by, or under common control 1. Section 17(a) of the Act generally Carter Blvd., MD 5645, Fort Worth, with MSDWD (collectively with prohibits sales or purchases of securities Texas 76155; Variable Annuity MSDWD, ‘‘Affiliated Broker-Dealers’’). between a registered investment Portfolios, 21 Milk Street, 5th Floor, 4. The Portfolios use a multi-manager company and an affiliated person, or an Boston, Massachusetts 02109; MSDWD, structure in which separate Subadvisers, affiliated person of an affiliated person, 1585 Broadway, New York, New York including MSDWD Advisers, are used to of the company. Sections 2(a)(3)(C) and 10036; MSAM, 1221 Avenue of the manage discrete portions of the (E) of the Act define an ‘‘affiliated Americas, New York, New York 10020; Portfolio. Each Subadviser acts as if it person’’ of another person to be any and MA&S, One Tower Bridge, West were managing a separate investment person controlling, controlled by, or Conshohocken, Pennsylvania 19428. company. The Subadvisers do not under control with the person, and any FOR FURTHER INFORMATION CONTACT: collaborate, and each is responsible for investment adviser of an investment Elaine M. Boggs, Senior Counsel, at making independent investment and company, respectively. Applicants (202) 942–0572, or Christine Y. brokerage allocation decisions for its believe that an MSDWD Adviser acting Greenlees, Branch Chief, at (202) 942– portion based on its own research and as a Subadviser of a Portfolio would be 0564 (Office of Investment Company analysis. The Subadvisers do not receive an affiliated person of that Portfolio, and Regulation, Division of Investment information about investment or each Affiliated Broker-Dealer would be Management). brokerage allocation decisions of an affiliated person of the MSDWD SUPPLEMENTARY INFORMATION: The another portion of the Portfolio before Adviser and as affiliated person of an following is a summary of the they are implemented. Each Subadviser affiliated person (‘‘second-tier affiliate’’) application. The complete application is compensated based only on a of the Portfolio. As a result, applicants may be obtained for a fee from the SEC’s percentage of the value of the Portfolio’s believe that any principal transaction Public Reference Branch, 450 Fifth assets allocated to it. Applicants state between an Unaffiliated Portion and an Street, N.W., Washington, DC 20549 (tel. that MSDWD does not and will not Affiliated Broker-Dealer would be 202–942–8090). prohibited by section 17(a). 1 The term Unaffiliated Subadviser includes 2. Applicants request relief from Applicants’ Representations investment advisers that manage discrete portions 1. MSDWD is registered as a broker- of multi-managed Portfolios, whether or not the section 17(a) to permit principal dealer under the Securities Exchange Portfolios have a primary adviser that is responsible transactions entered into in the ordinary for the overall investment performance of the fund Act of 1934 and as an investment course of business between the and monitoring the Subadvisers. In addition, the Unaffiliated Portion and an Affiliated adviser under the Investment Advisers term includes a primary adviser to the extent the Act of 1940 (‘‘Advisers Act’’). MSAM primary adviser is responsible for a portion of a Broker-Dealer. Applicants state that the multi-managed Portfolio. relief would apply only when an and MA&S are controlled by MSDWD 2 and are registered as investment All registered open-end investment companies Affiliated Broker-Dealer is deemed to be that currently intend to rely on the order are named an affiliated person or a second-tier advisers under the Advisers Act. as applicants. Any other existing or future 2. AMR Trust and Variable Annuity registered open-end investment company that relies affiliate of a Portfolio solely because an Portfolios are open-end investment on the order will comply with the terms and MSDWD Adviser is the subadviser to conditions of the application. Any registered open- another portion of the same Portfolio. companies registered under the Act and end investment company for which an MSDWD each consists of several portfolios. AMR Adviser may act as investment adviser is also a 3. Section 6(c) permits the SEC to Trust is advised by AMR Investment ‘‘Portfolio.’’ exempt any person or transaction from Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43225 any provision of the Act, if the Applicants also assert that permitting execution for the Unaffiliated Portion. exemption is necessary or appropriate the transactions will be consistent with Applicants thus believe that an in the public interest and consistent the general purposes of the act and in exemption from the requirements of rule with the protection of investors and the the public interest because the ability to 17e–1(b) and (c) would be appropriate. purposes fairly intended by the policies engage in the transactions will increase C. Purchases of Certain Securities by of the Act. Section 17(b) permits the the likelihood of a Portfolio achieving SEC to grant an order permitting a best price and execution on its principal Unaffiliated Portions transaction otherwise prohibited by transactions while giving rise to none of 1. Section 10(f) of the Act, in relevant section 17(a) if it finds that the terms of the abuses that section 17(a) was part, prohibits a registered investment the proposed transaction are fair and designed to prevent. company from knowingly purchasing or reasonable and do not involve B. Payment of Brokerage Compensation otherwise acquiring during the overreaching on the part of any person by Unaffiliated Portions to Affiliated existence of any underwriting or selling concerned, and the proposed Broker-Dealers syndicate, any security (except a transaction is consistent with the policy security of which the company is the of each registered investment company 1. Section 17(e)(2) of the Act prohibits issuer) a principal underwriter of which and the general purposes of the Act. For an affiliated person or a second-tier is an officer, director, member of an the reasons stated below, applicants affiliate of a registered investment advisory board, investment adviser, or believe that the proposed transactions company from receiving compensation employee of the company, or an meet the standards of sections 6(c) and for acting as broker in connection with affiliated person of any of the foregoing. 17(b). the sale of securities to or by the Section 10(f) also provides that the SEC 4. Applicants contend that section company if the compensation exceeds may exempt by order any transaction or 17(a) is intended to prevent persons the limits prescribed by the section classes of transactions from any of the who have the power to influence an unless otherwise permitted by rule 17e– provisions of section 10(f), if and to the investment company from using that 1 under the Act. Rule 17e–1(a) provides extent that such exemption is consistent influence to their own pecuniary that brokerage compensation paid with the protection of investors. Rule advantage. Applicants assert that when pursuant to the rule must be reasonable 10f–3 exempts certain transactions from a person acting on behalf of an and fair compared with compensation the prohibitions of section 10(f) if investment company has no direct or paid in comparable transactions. Rule specified conditions are met. Paragraph indirect pecuniary interest in a party to 17e–1(b) requires the investment (b)(7) of rule 10f–3 provides that the company’s board of directors, including a principal transaction, then the abuses amount of securities of any class of an a majority of the directors who are not that section 17(a) was designed to issue to be purchased by the investment interested persons under section prevent are not present. company, or by two or more investment 5. Applicants assert that each 2(a)(19) of the act, to adopt procedures companies having the same investment Subadviser’s contract assigns it regarding brokerage compensation paid adviser, shall not exceed certain responsibility to manage a discrete pursuant to the rule and to determine at percentages specified in the rule. portion of the Portfolio. Each least quarterly that all transactions Subadviser is responsible for making effected in reliance on the rule complied 2. Applicants state that when an independent investment and brokerage with the procedures. Rule 17e-1(c) MSDWD Adviser acts as a Subadviser to allocation decisions based on its own specifies the records that must be a Portfolio, it is considered to be an research and credit evaluations. maintained by each investment investment adviser to the entire Applicants state that no MSDWD company with respect to any transaction Portfolio. Applicants therefore believe Adviser will serve as Subadviser to any effected pursuant to rule 17e-1. that all purchases of securities by an Portfolio where the primary adviser to 2. Applicants state that, for the Unaffiliated Portion from an the Portfolio dictates or influences reasons discussed above, Affiliated underwriting syndicate a principal brokerage allocation or investment Broker-Dealers are second-tier affiliates underwriter of which is an Affiliated decisions, or has the contractual right to of the Unaffiliated Portions and thus Broker-Dealer would be subject to do so. Applicants submit that in subject to section 17(e). Applicants section 10(f). managing a discrete portion of a request an exemption under section 6(c) 3. Applicants request relief under Portfolio, each Subadviser acts for all from the provisions of section 17(e) and section 10(f) from that section to permit practical purposes as though it is rule 17e–1 to the extent necessary to Unaffiliated Portions to purchase managing a separate investment permit the Unaffiliated Portions to pay securities during the existence of an company. Further, applicants state that, brokerage compensation to Affiliated underwriting or selling syndicate, a for each transaction for which relief is Broker-Dealers, when the Affiliated principal underwriter of which is an requested, the Unaffiliated Subadviser Broker-Dealer acts as broker in the Affiliated Broker-Dealer. In addition, in would be dealing with an Affiliated ordinary course of business, without the event an Affiliated Portion Broker-Dealer that is a competitor of complying with the requirements of rule purchases securities in reliance on rule that Subadviser. Applicants believe 173–1(b) and (c). Applicants believe that 10f–3, applicants request an exemption therefore, that each transaction would the proposed brokerage transactions under section 10(f) from rule 10f–3 so be the product of arm’s length meet the standards of section (c) of the that an MSDWD Adviser will not be bargaining. Act for the same reasons that the required to aggregate those purchases 6. Applicants state that the proposed proposed principal transactions satisfy with any purchases of the same security transactions will be consistent with the the standards. In addition, applicants by Unaffiliated Portions. Applicants policies of the Portfolio, since each state that the brokerage transactions will request relief only to the extent that Unaffiliated Subadviser is required to comply with the requirement of rule section 10(f) applies because an manage the Unaffiliated Portion of the 17e–1(a) that the brokerage MSDWD Adviser is an investment Portfolio in accordance with the compensation be fair and reasonable. adviser to the Portfolio. Applicants investment objectives and related Applicants also note that the believe that the proposed transactions investment policies of the Portfolio as Unaffiliated Subadvisers will be subject meet the standards set forth in section described in its registration statement. to a fiduciary duty to obtain best 10(f). 43226 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices

4. Applicants state that section 10(f) TENNESSEE VALLEY AUTHORITY transmission line access, combustion was adopted in response to concerns turbine maintenance and operating about the ‘‘dumping’’ of otherwise Environmental Impact Statement for staff), existing land ownership, and an unmarketable securities on investment Addition of Electric Generation accelerated project schedule with companies, either by forcing the Peaking Capacity reduced risk. Also, inherent in incremental development of industrial investment company to purchase AGENCY: Tennessee Valley Authority. sites such as these is the potential for unmarketable securities from its ACTION: Notice of intent. underwriting affiliate, or by forcing or reduced environmental impacts. Each site installation would consist of encouraging the investment company to SUMMARY: The Tennessee Valley up to eight natural gas fired combustion purchase the securities from another Authority (TVA) will prepare an environmental impact statement (EIS) turbine-generators. Fuel oil would be member of the syndicate. Applicants the secondary fuel. These combustion submit that these abuses are not present for the proposed addition of peaking capacity to the TVA electric generation turbines would employ dry low-NOx in the context of the Portfolios because, combustion chambers and/or water as discussed above, a decision by a system. The EIS will evaluate the potential environmental impacts of injection for NOx control. Typical Subadviser to one discrete portion of a installing and operating proposed manufacturers and models of simple Portfolio to purchase securities from an simple cycle natural gas fired cycle combustion turbines for the underwriting syndicate, a principal combustion turbines to provide the proposed application are General underwriter of which is an affiliated needed peaking capacity. TVA wants to Electric models GE 7001 EA and GE person of a Subadviser to a different use the EIS process to obtain the 7001 FA, and Westinghouse models WH portion of the same Portfolio, involves public’s comments on this proposal. 501D5A and WH 501 FA Other appurtenances and ancillary equipment no potential for ‘‘dumping.’’ In addition, DATES: Comments on the scope of the applicants assert that aggregating EIS must be postmarked no later than would include step-up transformers for purchases would serve no purpose September 11, 1998. TVA will conduct 161 kilovolt or 500 kilovolt service, because any common purchases would public meetings on the scope of the EIS. transmission line connection be coincidence, and not the result of a The locations and times of these equipment, demineralized water to decision by a single Subadviser, because meetings are announced below. supply the water injection NOx control systems, and maintenance and there is no collaboration among ADDRESSES: Written comments should Subadvisers. operational support buildings or be sent to Greg Askew, P.E., Senior equipment. Applicants’ Conditions Specialist, National Environmental Other actions necessary for operation Policy Act, Tennessee Valley Authority, of combustion turbines at the Colbert Applicants agree that any order of the mail stop WT 8C, 400 West Summit Hill site would include one or more natural SEC granting the requested relief will be Drive, Knoxville, Tennessee 37902– gas pipeline taps and conveyances. subject to the following conditions: 1499. Comments may also be e-mailed TVA’s Integrated Resource Plan 1. Each Portfolio will be advised by a to [email protected]. MSDWD Adviser and at least one FOR FURTHER INFORMATION CONTACT: Roy This EIS will tier from TVA’s Energy Unaffiliated Subadviser and will be V. Carter, P.E., EIS Project Manager, Vision 2020’An Integrated Resource operated consistent with the manner Environmental Research Center, Plan and Final Programmatic Environmental Impact Statement. described in the application. Tennessee Valley Authority, mail stop CEB 4C, Muscle Shoals, Alabama Energy Vision 2020 was completed in 2. Neither the MSDWD Adviser 35662–1010. E-mail may be sent to December 1995 and a Record of (except by virtue of serving as [email protected]. Decision issued on February 28, 1996. Subadviser) nor the Affiliated Broker- SUPPLEMENTARY INFORMATION: Energy Vision 2020 analyzed a full Dealer will be an affiliated person or a range of supply-side and demand-side second-tier affiliate of any Unaffiliated Project Description options to meet customer energy needs. Subadviser or any officer, trustee or Construction and operation of simple These options were ranked using several employee of the Portfolio engaging in cycle natural gas-fired combustion criteria including environmental the transaction. turbine units are proposed by TVA to performance. Favorable options were 3. No MSDWD Adviser will directly meet up to 1,350 MW of peaking formulated into strategies to effectively or indirectly consult with any requirements with some capacity meet electric energy and peak capacity unaffiliated Subadviser concerning available as early as June 2000. Up to needs of TVA’s customers for a range of allocation of principal or brokerage eight natural gas-fired combustion postulated futures. A portfolio of turbines would be installed at one, two options drawn from several robust transactions. or three existing TVA power plant sites. strategies was chosen as TVA’s 4. No. MSDWD Adviser will The three TVA power plant sites preferred alternative. In this preferred participate in any arrangement under under consideration are Johnsonville alternative, three supply-side options which the amount of its subadvisory Fossil Plant in Humphreys County, selected to meet peak capacity needs fees will be affected by the investment Tennessee; Gallatin Fossil Plant in were: (1) addition of combustion performance of an Unaffiliated Sumner County, Tennessee; and Colbert turbines to TVA’s generation system, (2) Subadviser. Fossil Plant in Colbert County, purchase of market peaking capacity, For the Commission, by the Division of Alabama. Each of these TVA plant sites and (3) call options on peaking capacity. Investment Management, pursuant to have both coal-fired units and natural The short-term action plan of Energy delegated authority. gas and/or fuel oil fired combustion Vision 2020 identified a need for 3,000 turbines. These TVA plant sites offer MW of baseload and peaking additions Jonathan G. Katz, potential advantages over greenfield through the year 2002. Secretary. sites. These advantages include use of Because Energy Vision 2020 [FR Doc. 98–21594 Filed 8–11–98; 8:45 am] existing plant infrastructure (water identified and evaluated alternative BILLING CODE 8010±01±M service, natural gas supply at two sites, supply-side and demand-side energy Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43227 resources and technologies for meeting determining the scope of issues to be OFFICE OF THE UNITED STATES peak capacity needs, this EIS will not addressed and for identifying the TRADE REPRESENTATIVE reevaluate those alternatives. This EIS significant issues related to a proposed will focus on the site-specific impacts of action. The scope of issues to be [Docket No. 301±117] constructing and operating additional addressed in the draft EIS will be Extension of Section 301 Investigation: TVA combustion turbines at three determined, in part, from written Intellectual Property Laws and candidate sites. comments submitted by mail or e-mail, Practices of the Government of and comments presented orally or in Proposed Issues To Be Addressed Paraguay writing at public meetings. The The EIS will describe the existing preliminary identification in this notice AGENCY: Office of the United States environmental and socioeconomic of reasonable alternatives and Trade Representative. resources at each of the three sites that environmental issues is not meant to be ACTION: Notice. may be potentially affected by exhaustive or final. construction and operation of natural The scoping process will include both SUMMARY: The United States Trade gas-fired combustion turbines. TVA’s interagency and public scoping. The Representative (USTR) has determined evaluation of potential environmental public is invited to submit written to extend the investigation of the acts, impacts to these resources will include, comments or e-mail comments on the policies and practices of the but not necessarily be limited to the scope of this EIS no later than the date Government of Paraguay that deny impacts on air quality, water quality, given under the DATES section of this adequate and effective protection of aquatic and terrestrial ecology, notice and/or attend the public scoping intellectual property rights. endangered and threatened species, meetings. TVA will conduct three DATES: The USTR made this wetlands, aesthetics and visual public scoping meetings using an open determination on Tuesday, August 4, resources, noise, land use, historic and house format. At each meeting, TVA 1998. archaeological resources, and staff will be present to discuss the ADDRESSES: Office of the United States socioeconomic resources. Because the project proposals and the environmental Trade Representative, 600 17th Street, proposed projects would be located on issues, and to receive both oral and N.W., Washington, DC 20508. previously disturbed property at written comments. The meeting FOR FURTHER INFORMATION CONTACT: operating TVA power plant sites, the locations and schedule are as follows: on-site issues of terrestrial wildlife, Claude Burcky, Director for Intellectual Monday, August 31, Gallatin Civic Property, (202) 395–6864; Kellie habitat, and vegetation; aesthetics and Center, 210 Albert Gallatin Road, visual resources; land use conversion; Meiman, Director for Mercosur and the Gallatin, Tennessee; Tuesday, Southern Cone, (202) 395–5190; or and historic and archaeological September 1, Humphreys County Board resources are not likely to be important. Geralyn S. Ritter, Assistant General of Education Building, 2443 Highway 70 Counsel, (202) 395–6800. Also, the proposed units would have no East, Waverly, Tennessee; Thursday, process wastewater discharge and will September 3, Lions Club Building, SUPPLEMENTARY INFORMATION: On require no new water supply source, Corner of Church and First Streets, January 16, 1998, the USTR identified thus impacts to aquatic ecology are Cherokee, Alabama. The times for all Paraguay as a Priority Foreign Country unlikely. three open house meetings are 4:00 p.m. under the ‘‘Special 301’’ provisions of the Trade Act of 1974, as amended (19 Alternatives to 9:00 p.m. The agencies to be included in the U.S.C. 2242). In identifying Paraguay as The results of evaluating the potential interagency scoping are U.S. Fish and a Priorty Foreign Country, the USTR environmental impacts related to these Wildlife Service, Tennessee Department noted deficiencies in Paraguay’s acts, issues and other important issues of Conservation and Environment, the policies and practices regarding identified in the scoping process Tennessee State Historic Preservation intellectual property, including a lack of together with engineering and economic Officer, and other agencies as effective action to enforce intellectual considerations will be used in selecting appropriate. property rights. The USTR also observed a preferred alternative. At this time, Upon consideration of the scoping that the Government of Paraguay has TVA has identified the following comments, TVA will develop failed to enact adequate and effective alternatives for detailed evaluation: (1) a alternatives and identify important intellectual property legislation single site alternative, (2) alternatives environmental issues to be addressed in covering patents, copyrights and employing two of the three sites, (3) an the EIS. Following analysis of the trademarks. As required under Section alternative employing all three sites, environmental consequences of each 302(b)(2)(A) of the Trade Act (19 U.S.C. and (4) no action. alternative, TVA will prepare a draft EIS 2412(b)(2)(A)), an investigation of these acts, policies and practices was initiated Scoping Process for public review and comment. Notice of availability of the draft EIS will be on February 17, 1998. Scoping, which is integral to the published by the Environmental Extension of Investigation NEPA process, is a procedure that Protection Agency in the Federal solicits public input to the EIS process Register. TVA will solicit written Numerous bilateral negotiations have to ensure that: (1) Issues are identified comments on the draft EIS, and been held on these issues since the early and properly studied; (2) issues of information about possible public initiation of this investigation. Although little significance do not consume meetings to comment on the draft EIS Paraguay has indicated that it will take substantial time and effort; (3) the draft will be announced. TVA expects to a number of actions to improve EIS is thorough and balanced; and (4) release a final EIS in May 1999. protection for intellectual property and, delays caused by an inadequate EIS are in particular, to strengthen the avoided. TVA’s NEPA procedures Dated: August 6, 1998. enforcement of intellectual property require that the scoping process Kathryn J. Jackson, rights, significant progress on a majority commence after a decision has been Executive Vice President, Resource Group. of U.S. concerns has not occurred. reached to prepare an EIS in order to [FR Doc. 98–21580 Filed 8–11–98; 8:45 am] These issues are too complex and provide an early and open process for BILLING CODE 8120±08±P complicated to resolve before the end of 43228 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices the six-month statutory deadline for receipt of their comments must include governments operate airports to provide concluding this investigation. USTR a preaddressed, stamped postcard on aeronautical services for their will look to the new government taking which the following statement is made: communities to benefit their residents office in Paraguay in mid-August to ‘‘Comments to Docket No. . The and improve the local economic base, move quickly to address the continuing postcard will be date stamped and not to generate revenue surpluses. serious deficiencies in Paraguay’s mailed to the commenter. The Policy Statement modified the intellectual property regime. Comments on this Notice may be approach taken in the February 3, 1995 In light of the need for further time for delivered or examined in room 915G on Interim Policy on determining the negotiations to resolve these remaining weekdays, except on Federal holidays reasonableness of fees for nonairfield issues, the USTR has determined between 8:30 am and 5:00 p.m. facilities. (Under the Interim Policy, pursuant to section 304(a)(3)(B)(i) of the FOR FURTHER INFORMATION CONTACT: Mr. airfield and nonairfield fees were Trade Act, that ‘‘complex or Barry Molar, Manager (AAS–400), (202) considered reasonable only when complicated issues are involved in the 267–3187 or Mr. Wayne Heibeck (AAS– capped at historical cost). The Policy investigation that require additional 400), Compliance Specialist, (202) 267– Statement also discussed: the time.’’ The USTR has therefore extended 8726, Airport Compliance Division, Department’s preference for direct local this investigation, and will make a final Office of Airport Safety and Standards, negotiation between airport proprietors determination by November 17, 1998. Federal Aviation Administration, 800 and users; the prohibition on unjustly Irving A. Williamson, Independence Ave., SW, Washington, discriminatory fees; the obligation to Chairman, Section 301 Committee. DC 20591. maintain a fee and rental structure that [FR Doc. 98–21641 Filed 8–11–98; 8:45 am] SUPPLEMENTARY INFORMATION: makes the airport as self-sustaining as BILLING CODE 3190±01±M possible under the circumstances at the Background airport; and the prohibition against On June 21, 1996, Office of the unlawful diversion of airport revenues. Both the Air Transport Association DEPARTMENT OF TRANSPORTATION Secretary and the Federal Aviation Administration (together, the (ATA) and the City of Los Angles sought Office of the Secretary ‘‘Department’’ of Transportation or judicial review of the policy Statement. ‘‘Department’’) issued a Policy The ATA challenged the Department’s Federal Aviation Administration Statement (61 FR 31994 et seq.) on the approach to determining reasonable nonairfield fees and the decision to [Docket No. 29303] fees charged by airports to air carriers and other aeronautical users. This permit airfield fees to include any Policy Regarding Airport Rates and Policy Statement responded to 49 U.S.C. imputed interest charge. The City of Los Charges 47129(b), which requires the Secretary Angeles challenged the HCA to publish standards or guidelines to be requirement for airfield fees. AGENCY: Departmen of Transportation, used in determining whether an airport The United States Court of Appeals Office of the Secretary, and Federal fee is reasonable in disputes between for the District of Columbia Circuit Aviation Administration. airports and airlines. (Section 113 of the vacated and remanded portions of the ACTION: Advance notice of proposed Federal Aviation Administration Policy Statement setting forth guidance policy, request for comments. Authorization Act of 1994, Public Law on fair and reasonable airfield and No. 103–305). nonairfield fees. Air Transport SUMMARY: This document requests The Policy Statement reflected Association of America v. Department suggestions for replacement provisions industry practice at commercial service of Transportation (ATA v. DOT), 119 for the portions of the Department of airports of establishing fees for the use F.3d 38 (D.C. Cir. 1997), as modified on Transportation’s Policy Regarding of airfields (e.g., runways and taxiways) rehearing, Order of Oct. 15, 1997. Airport Rates and Charges (Policy and public-use roadways on the basis of Specifically, the court vacated: Statement) issued June 21, 1996 and the airport operator’s costs, using paragraphs 2.4, 2.4.1, 2.4.1(a), 2.5.1, 2.5.1(a), vacated by the United States Court of historic cost valuation (HCA 2.5.1(b), 2.5.1(c), 2.5.1(d), 2.5.1(e), 2.5.3, Appeals for the District of Columbia requirement). This cost-based approach 2.5.3(a), 2.6, the Secretary’s supporting Circuit. The Department is beginning allowed airports to recover out-of- discussion in the preamble, and any other this proceeding in order to carry out its pocket costs and permitted airfield fees portions of the rule necessarily implicated by responsibility to establish to include as a cost imputed interest on the holding of [the August 1, 1997 opinion]. reasonableness guidelines for airport airport operator funds invested in the The court’s opinion found fault with fees. airfield, except funds obtained from the Department’s distinction between DATES: Comments must be submitted on airfield fees. the airfield, on the one hand, and or before October 13, 1998. Reply Recognizing that fees for other nonairfield facilities, on the other hand, comments will be accepted and must be aeronautical facilities (e.g., hangars and with respect to the reasonableness of submitted on or before October 26, terminals) were often established fees. The court believed the Department 1998. Late filed comments will be through direct negotiations with should have explained its fees policy in considered to the extent possible. individual users, the Department light of the economics of airport ADDRESSES: Comments on this notice adopted a more flexible approach to behavior and had failed to justify the must be delivered or mailed, in nonairfield fees. The Department distinction between airfield and quadruplicate, to: Federal Aviation permitted these fees to be set by any nonairfield fees. The court also Administration, Office of Chief Counsel, reasonable methodology, including, questioned the Department’s Attention: Rules Docket (AGC–10), among others, appraised fair market justification for the disparate treatment Docket No. 29303, 800 Independence value. Among the factors it considered of imputed interest charges. Ave., SW, Room 915G, Washington, DC to support the disparate treatment, the On November 25, 1997, the Airports 20591. All comments must be marked Department found that airports had not Council International-North America ‘‘Docket No. 29303.’’ Commenters exercised monopoly power in pricing (ACI) and the American Association of wishing the FAA to acknowledge these facilities and that state and local Airport Executives (AAAE) filed a Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43229

Petition for Rulemaking proposing reinstate the approach taken in the of information, from each party’s revisions of the Policy Statement Interim Policy and require all perspective. This request for comment is (Docket No. OST–97–3158). The ACI/ aeronautical fees to be based on HCA limited to the provisions in the Policy AAAE would have the Department valuation of assets. The result of this Statement that the District of Columbia permit airport proprietors to value requirement would in turn be to Circuit Court of Appeals vacated. These airfield assets at an amount greater than reinstate the HCA cap on total are the provisions subjected to the historic cost (but no higher than a aeronautical revenues, according to the remand proceeding. Accordingly, the competitive market-based fair market ATA. In addition, the ATA would have Department is not requesting, at this value) and would permit an airport the policy bar imputed interest in time, comments on other portions of the proprietor to charge imputed interest on aeronautical charges, or at most permit Policy Statement nor on our procedures aeronautical fees invested in imputed interest only on funds derived under 49 U.S.C. 47129. aeronautical facilities. It would also from nonaeronautical users. Finally, the Specifically, in addition to proposals permit an airport proprietor to charge ATA would have the Department for replacement provisions, the current costs for airfield facilities (in reinstate the prohibition on charges for Department requests the following: addition to non-airfield facilities) not facilities not in use and apply that • A description of the existing currently in use. prohibition to all aeronautical charges. aeronautical fee structures and In support of its petition, the ACI/ In support of its request on the first methodologies in place at specific AAAE explained that it is the two issues, ATA asserts that its proposal airport(s) (in the case of aeronautical longstanding practice at many would address the concerns expressed users, airports where the user pays fees). commercial service airports to charge by the Court of Appeals over the • The rationale for those fair market value for exclusive-use disparate treatment of airfield and methodologies and, if certain fees are assets and to value airfield assets on the nonairfield fees. In addition, the ATA negotiated, including a discussion of the basis of historical cost. They asserted argues that the proposal on asset factors considered in arriving at the that their proposal would not valuation and imputed interest is not final fee product. necessarily change industry practice. precluded by the court’s opinion, which • The explanation of the basis for With regard to monopoly power, the faulted the Department for lack of distinctions between fees charged for ACI/AAAE disputed the claim that adequate justification. The ATA further airfield versus non-airfield assets, if airports behave like monopolists and argues that its approach is supported by applicable (and, if applicable, between did not believe it necessary to hold all the Department’s recent determination terminal facilities and hangars and aeronautical fees to cost-of-service on remand in the Los Angeles maintenance facilities). The basis may levels. Capping the fees at competitive International Airport (‘‘LAX’’) Rates include industry practice, airport market rates (as opposed to above- Proceeding, DOT Order 97–12–31 market power, airline market power, etc. competitive market rate) would, in any (December 23, 1997), and that the • Evidence that would support a event, prevent any monopolistic abuses, Department’s rationales in that decision determination that airports do or do not according to ACI/AAAE. Additionally, apply nationwide. ACI/AAAE explained that airport On the third issue, the ATA argues possess or use monopoly power in proprietors engage in competition in that the court vacated the prohibition on setting aeronautical fees and a order to maintain existing service and charging for facilities not in use only discussion of the comment’s view of the attract new air carriers. Further, the because the prohibition was limited to issue. In the proceeding that led to the prohibition against unlawful airport the airfield. The ATA argues that Policy Statement, airport operators and revenue diversion acts as a check to because the basic premise and reasoning airport users disputed whether airport monopolistic charging, according to for the prohibition were not challenged proprietors can and do exercise these airport industry organizations. before the court, the ACI/AAAE should monopoly power in pricing essential Airports compete to be gateways to not be permitted to reopen the issue, aeronautical facilities. • domestic and international geographic especially when the ACI/AAAE have Proposals on methods to curb abuse regions, also. It is airlines that have offered no persuasive reason to reject of any monopoly power in a fee market power in many city-pair the Department’s rationale for the reasonableness standard. • markets, not airports, according to ACI/ prohibition. If comments suggest a change in fee AAAE. Airlines wield power at airports structures or methodologies, comments through majority-in-interest clauses that Request for Comments should include an explanation of how provide veto power over construction or As a first step in responding to the the proposal would affect the economic other capital projects. court’s decision, the Department is behavior of airports and air carriers. ACI/AAAE also requested revisions to soliciting suggestions for appropriate Comments should also justify the portions of the Policy Statement not replacement provisions for the portion proposal under the statutory vacated by the D.C. Circuit Court of of the Policy Statement vacated by the reasonableness standard (49 U.S.C. Appeals. They proposed that the court. In addition, more information on 40116(e) and 47107(a)) and explain how Department base its review of the the nature of specific airport fee the proposal addresses the concerns reasonableness of airport fees on written practices and analysis of the economics raised by the court. submissions, rather than on a de novo of airport behavior are necessary before • Comments should also address the review. They also proposed language the Department proposes new fee suggestion in ATA v. DOT that that the Policy Statement and the guidelines. ‘‘Congress intended the Secretary to expedited procedures created by 49 The Department anticipates that these fashion a quasi-legislative uniform U.S.C. 47129 should not be applied to comments will be candid, will approach [for several different fees charged to signatories to an accurately reflect current industry methodologies, depending on the agreement. practices, and will suggest procedures circumstances] to measuring the On March 12, 1998, the ATA filed a that can be implemented without undue reasonableness of airport fees.’’ 119 F.3d Petition for Rulemaking proposing disruption to the industry. We hope that at 40. Examples of approaches that revisions to the Policy Statement. The both the air carriers and the airports will would meet the court’s concerns, ATA would have the Department be able to provide us with the same type accompanied by justification based on 43230 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices industry practice, economic behavior, EUR–ME Fares 0019 dated July 28, a PFC at Chicago O’Hare International and other relevant criteria are invited. 1998—Tables Intended effective date: Airport and use the revenue from a PFC • Comments requesting the January 1, 1999. at Gary Regional Airport under the Department to readopt any of the Dorothy W. Walker, provisions of the Aviation Safety and vacated provisions should include Federal Register Liaison. Capacity Expansion Act of 1990 (Title suggestions on how the Department [FR Doc. 98–21584 Filed 8–11–98; 8:45 am] IX of the Omnibus Budget could better justify doing so in light of BILLING CODE 4910±62±P Reconciliation Act of 1990) (Pub. L. the concerns raised by the court. 101–508) and Part 158 of the Federal Accordingly, the Department is Aviation Regulations (14 CFR Part 158). requesting comments on the matters DEPARTMENT OF TRANSPORTATION On July 15, 1998, the FAA determined stated above and is requesting proposals that the application to impose and use to replace provisions for the vacated Federal Aviation Administration the revenue from a PFC submitted by portions of the Policy Statement. City of Chicago Department of Aviation Intent to Rule on Application to Impose Petitions for Rulemaking was substantially complete within the a Passenger Facility Charge (PFC) at requirements of section 158.25 of Part The petitions for rulemaking of ACI/ Chicago O'Hare International Airport, 158. The FAA will approve or AAAE and ATA evidently start from Chicago, Illinois and Use FPC Revenue disapprove the application, in whole or different assumptions and propose at Gary Regional Airport, Gary, Indiana in part, no later than November 5, 1998. significantly divergent policies. AGENCY: Federal Aviation The following is a brief overview of Moreover, as discussed above, the Administration (FAA), DOT. the application. PFC application Department has determined that number: 98–09–C–00–ORD. additional information and input is ACTION: Notice of Intent to Rule on application. Level the PFC: $3.00. needed before a specific proposal is Original charge effective date: formulated. Accordingly, the SUMMARY: The FAA proposes to rule and September 1, 1993. Department is opening a new docket to invites public comment on the Revised proposed charge expiration receive comments on fee application to impose a FPC at Chicago date: November 1, 2011. reasonableness. The Department is O’Hare International Airport and use the Total estimated PFC revenue: taking no further action on these revenue from a PFC at Gary Regional $1,540,000.00. petitions at this time. Therefore, this Airport under the provisions of the Brief description of proposed Advance Notice of Proposed Policy is Aviation Safety and Capacity Expansion project(s): limited to the issues raised by Air Act of 1990 (Title IX of the Omnibus a. Phase II Airport Master Plan Transport Association of America v. Budget Reconciliation Act of 1990) b. Terminal Apron Expansion Department of Transportation, 119 F.3d (Pub. L. 101–508) and Part 158 of the c. Snow Removal Equipment 38 (D.C. Cir. 1997). The substance of the Federal Aviation Regulations (14 CFR Class or classes of air carriers which the two petitions will be considered along Part 158). with the comments submitted by other public agency has requested not be DATES: Comments must be received on required to collect PFCs: Air Taxi interested parties. Comments on the or before September 11, 1998. petitions may be submitted during the operators. ADDRESSES: Comments on this reply period. Any person may inspect the application may be mailed or delivered application in person at the FAA office Issued in Washington, D.C. on August 5, in triplicate to the FAA at the following listed above under FOR FURTHER 1998. address: Federal Aviation INFORMATION CONTACT. In addition, any Rodney E. Slater, Administration, Chicago Airports person may, upon request, inspect the Secretary of Transportation. District Office, 2300 East Devon application, notice and other documents Jane F. Garvey, Avenue, Room 201, Des Plaines, Illinois germane to the application in person at Adminsitrator, Federal Aviation 60018. the City of Chicago Department of Administration. In addition, one copy of any Aviation. [FR Doc. 98–21607 Filed 8–11–98; 8:45 am] comments submitted to the FAA must be mailed or delivered to Ms. Mary Rose Issued in Des Plaines, Illinois on August 6, BILLING CODE 4910±13±M 1998. Loney, Commissioner, of the City of Chicago Department of Aviation at the Robert Benko, DEPARTMENT OF TRANSPORTATION following address: Chicago O’Hare Acting Manager, Planning/Programming International Airport, P.O. Box 66142, Branch, Airports Division, Great Lakes Region. Aviation Proceedings, Agreements Chicago, Illinois 60666. Air carriers and Filed During the Week Ending July 31, foreign air carriers may submit copies of [FR Doc. 98–21602 Filed 8–11–98; 8:45 am] 1998 written comments previously provided BILLING CODE 4910±13±M to the City of Chicago Department of The following Agreements were filed Aviation under section 158.23 of Part with the Department of Transportation DEPARTMENT OF TRANSPORTATION 158. under the provisions of 49 U.S.C. Sections 412 and 414. Answers may be FOR FURTHER INFORMATION CONTACT: National Highway Traffic Safety filed within 21 days of date of filing. Mr. Philip M. Smithmeyer, Manager, Administration Chicago Airports District Office, 2300 Docket Number: OST–98–4265. [Docket No. NHTSA±98±4209] Date Filed: July 30, 1998. East Devon Avenue, Room 201, Des Plaines, Illinois 60018, (847) 294–7335. Parties: Members of the International Red River Manufacturing, Inc., Receipt The application may be reviewed in Air Transport Association. of Application for Decision of person at this same location. Subject: PTC2 EUR–ME 0059 dated Inconsequential Noncompliance July 14, 1998. Europe-Middle East SUPPLEMENTARY INFORMATION: The FAA Resolutions r1–35 PTC2 EUR–ME 0060 proposes to rule and invites public Red River Manufacturing, Inc. (Red dated July 17, 1998—Minutes, PTC2 comment on the application to impose River), a manufacturer of trailers, of Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43231

West Fargo, North Dakota, has industries and to the efficiency of other Federal agencies to take this determined that since March 14, 1996, governmental operations. opportunity to comment on proposed its tire and rim label information was 4. The dual labeling requirement is to and/or continuing information not in full compliance with 49 CFR continue until consumers become collections, as required by the 571.120, Federal Motor Vehicle Safety familiar with metric measurements. Paperwork Reduction Act of 1995, Pub. Standard (FMVSS) No. 120, ‘‘Tire 5. The omission of metric L. 104–13 (44 U.S.C. 3506(c)(2)(A)). Selection and Rims for Vehicles Other measurements from Red River’s FMVSS Currently, the IRS is soliciting Than Passenger Cars,’’ and has filed an No. 120 certification label is highly comments concerning an existing final appropriate report pursuant to 49 CFR unlike to have any effect whatever on regulation, PS–268–82 (TD 8696), Part 573, ‘‘Defect and Noncompliance motor vehicle safety, both because the Definitions Under Subchapter S of the Reports.’’ Red River has also applied to correct English units are used on Red Internal Revenue Code (§ 1.1377–1). be exempted from the notification and River’s labels and because of the small DATES: Written comments should be remedy requirements of 49 U.S.C. number of trailers involved. received on or before October 13, 1998 Chapter 301—‘‘Motor Vehicle Safety’’ 6. As soon as practicable upon to be assured of consideration. on the basis that the noncompliance is learning of its noncompliance, Red ADDRESSES: Direct all written comments inconsequential to motor vehicle safety. River has converted its labels to metric to Garrick R. Shear, Internal Revenue This notice of receipt of an measurements, in conformity with those application is published under 49 Service, room 5571, 1111 Constitution requirements. Avenue NW., Washington, DC 20224. U.S.C. 30118 and 30120 and does not Interested persons are invited to FOR FURTHER INFORMATION CONTACT: represent any agency decision or other submit written data, views, and Requests for additional information or exercise of judgment concerning the arguments on the application described copies of the regulation should be merits of the application. above. Comments should refer to the directed to Carol Savage, (202) 622– Paragraph S5.3 of FMVSS No. 120 docket number and be submitted to: 3945, Internal Revenue Service, room states that each vehicle shall show the U.S. Department of Transportation, 5569, 1111 Constitution Avenue NW., information specified on the tire Docket Management, Room PL–401, 400 Washington, DC 20224. information level in both English and Seventh Street, S.W., Washington, D.C., metric units. The standard also shows 20590. It is requested that two copies be SUPPLEMENTARY INFORMATION: an example of the prescribed format. submitted. Title: Definitions Under Subchapter S Since the law went into effect on All comments received before the of the Internal Revenue Code. March 14, 1996, Red River close of business on the closing date OMB Number: 1545–1462. manufactured and/or distributed 1,063 indicated below will be considered. The Regulation Project Number: PS–268– trailers that do not meet the application and supporting materials, 82. Abstract: Section 1.1377–1(b)(4) of the requirements stated in the standard. The and all comments received after the regulation provides that an S certification label affixed to Red River’s closing date, will also be filed and will corporation making a terminating trailers pursuant to Part 567 failed to be considered to the extent possible. election under Internal Revenue Code comply with S5.3 of FMVSS No. 120 When the application is granted or section 1377(a)(2) must attach a because of the omission of metric denied, the notice will be published in statement to its timely filed original or measurements, and Red River did not the Federal Register pursuant to the amended return required to be filed separately provide the metric authority indicated below. under Code section 6037(a). The measurements on another label, an Comment closing date: September 11, statement must provide information alternative allowed by FMVSS No. 120. 1998. The use of metric measurements is concerning the events that gave rise to required by FMVSS No. 120, pursuant (49 U.S.C. 30118, 30120; delegations of the election and declarations of consent to Federal Motor Vehicle Safety authority at 49 CFR 1.50 and 501.8) from the S corporation shareholders. Standards: Metric Conversion, 50 FR Issued on: August 6, 1998. Current Actions: There is no change to 13639, published on March 14, 1995, L. Robert Shelton, this existing regulation. and effective on March 14, 1996. Associate Administrator for Safety Type of Review: Extension of a Red River supports its application for Performance Standards. currently approved collection. inconsequential noncompliance with [FR Doc. 98–21583 Filed 8–11–98; 8:45 am] Affected Public: Business or other for- the following statements: BILLING CODE 4910±59±P profit organizations, and individuals. 1. The label contained the correct Estimated Number of Respondents: English unit information. 4,000. 2. Red River had been unaware of the DEPARTMENT OF THE TREASURY Estimated Time Per Respondent: 15 metric measurement requirement minutes. because Red River interpreted Part 567 Internal Revenue Service Estimated Total Annual Burden as suggesting the use of metric Hours: 1,000. measurements is permissive, not [PS±268±82] The following paragraph applies to all mandatory, and did not understand that Proposed Collection; Comment of the collections of information covered FMVSS No. 120 made the use of certain Request For Regulation Project by this notice: metric measurements mandatory. An agency may not conduct or 3. FMVSS No. 120’s metric AGENCY: Internal Revenue Service (IRS), sponsor, and a person is not required to measurement requirements were not Treasury. respond to, a collection of information mandated for safety purposes. Rather, in ACTION: Notice and request for unless the 3 collection of information designating the matric system as the comments. displays a valid OMB control number. preferred system of weights and Books or records relating to a measures, Congress was concerned SUMMARY: The Department of the collection of information must be chiefly with the contributions that the Treasury, as part of its continuing effort retained as long as their contents may metric system could make to the to reduce paperwork and respondent become material in the administration international competitiveness of U.S. burden, invites the general public and of any internal revenue law. Generally, 43232 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices tax returns and tax return information Service, room 5571, 1111 Constitution necessary for the proper performance of are confidential, as required by 26 Avenue NW., Washington, DC 20224. the functions of the agency, including U.S.C. 6103. FOR FURTHER INFORMATION CONTACT: whether the information shall have practical utility; (b) the accuracy of the Request for Comments Requests for additional information or copies of the regulation should be agency’s estimate of the burden of the Comments submitted in response to directed to Carol Savage, (202) 622– collection of information; (c) ways to this notice will be summarized and/or 3945, Internal Revenue Service, room enhance the quality, utility, and clarity included in the request for OMB 5569, 1111 Constitution Avenue NW., of the information to be collected; (d) approval. All comments will become a Washington, DC 20224. ways to minimize the burden of the matter of public record. Comments are SUPPLEMENTARY INFORMATION: collection of information on invited on: (a) Whether the collection of Title: Disposition of an Interest in a respondents, including through the use information is necessary for the proper Nuclear Power Plant. of automated collection techniques or performance of the functions of the OMB Number: 1545–1378. other forms of information technology; agency, including whether the Regulation Project Number: PS–4–89. and (e) estimates of capital or start-up information shall have practical utility; Abstract: This regulation relates to costs and costs of operation, (b) the accuracy of the agency’s estimate certain Federal income tax maintenance, and purchase of services of the burden of the collection of consequences of a disposition of an to provide information. information; (c) ways to enhance the interest in a nuclear power plant by a Approved: August 5, 1998. quality, utility, and clarity of the taxpayer that has maintained a nuclear information to be collected; (d) ways to Garrick R. Shear, decommissioning fund with respect to minimize the burden of the collection of IRS Reports Clearance Officer. that plant. The regulation affects information on respondents, including [FR Doc. 98–21557 Filed 8–11–98; 8:45 am] taxpayers that transfer or acquire through the use of automated collection BILLING CODE 4830±01±P interests in nuclear power plants by techniques or other forms of information providing guidance on the tax technology; and (e) estimates of capital consequences of these transfers. In or start-up costs and costs of operation, DEPARTMENT OF THE TREASURY addition, the regulation extends the maintenance, and purchase of services benefits of Internal Revenue Code Internal Revenue Service to provide information. section 468A to electing taxpayers with Approved: August 5, 1998. an interest in a nuclear power plant IRS Citizen Advocacy Panel Notice Garrick R. Shear, under the jurisdiction of the Rural AGENCY: Internal Revenue Service, IRS Reports Clearance Officer. Electrification Administration. Treasury. [FR Doc. 98–21556 Filed 8–11–98; 8:45 am] Current Actions: There is no change to ACTION: IRS Citizen Advocacy Panel; this existing regulation. BILLING CODE 4830±01±P Notice of Solicitation of Panel Members Type of Review: Extension of a for the Brooklyn, Midwest and Pacific- currently approved collection. Northwest Tax Districts. DEPARTMENT OF THE TREASURY Affected Public: Business or other for- profit organizations. SUMMARY: The Department of Treasury Internal Revenue Service Estimated Number of Respondents: is establishing IRS Citizen Advocacy [PS±4±89] 52. Panels to provide independent Estimated Time Per Respondent: 2 monitoring of the quality of IRS Proposed Collection; Comment hours, 24 minutes. customer service and to make Request For Regulation Project Estimated Total Annual Burden recommendations to improve that Hours: 125. service throughout the country. AGENCY: Internal Revenue Service (IRS), The following paragraph applies to all Treasury. DATES: Applications will be accepted of the collections of information covered from June 23 until September 11, 1998. ACTION: Notice and request for by this notice: ADDRESSES: comments. An agency may not conduct or Applications can be sponsor, and a person is not 3 required obtained by calling the following toll- SUMMARY: The Department of the to respond to, a collection of free number: 1–888–449–1071. Treasury, as part of its continuing effort information unless the collection of FOR FURTHER INFORMATION CONTACT: to reduce paperwork and respondent information displays a valid OMB Questions regarding the establishment burden, invites the general public and control number. Books or records and selection of the IRS Brooklyn, other Federal agencies to take this relating to a collection of information Midwest or Pacific Northwest Citizen opportunity to comment on proposed must be retained as long as their Advocacy Panels may be directed to and/or continuing information contents may become material in the Michael Lewis, Director, IRS Citizen collections, as required by the administration of any internal revenue Advocacy Panel, Office of the Assistant Paperwork Reduction Act of 1995, Pub. law. Generally, tax returns and tax Secretary for Management and Chief L. 104–13 (44 U.S.C. 3506(c)(2)(A)). return information are confidential, as Financial Officer, Department of the Currently, the IRS is soliciting required by 26 U.S.C. 6103. Treasury, 1500 Pennsylvania Avenue, comments concerning an existing final N.W., Room 2421, Washington, DC regulation, PS–4–89 (TD 8580), Request for Comments 20220, (202) 622–3068. Disposition of an Interest in a Nuclear Comments submitted in response to SUPPLEMENTARY INFORMATION: The first Power Plant (§ 1.468A–3). this notice will be summarized and/or Citizen Advocacy Panel (CAP) was DATES: Written comments should be included in the request for OMB established in the South Florida Tax received on or before October 13, 1998 approval. All comments will become a District on June 23, 1998. The next to be assured of consideration. matter of public record. Citizen Advocacy Panels will be formed ADDRESSES: Direct all written comments Comments are invited on: (a) Whether in the Brooklyn, Midwest and Pacific- to Garrick R. Shear, Internal Revenue the collection of information is Northwest Tax Districts. An Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Notices 43233 independent consulting firm, Booz complete the initial phone screen. If the Revenue Service, 5000 Ellin Road, Allen and Hamilton, Inc., is accepting applicant passes the phone screen and Lanham, MD, 20706, Attention: Program applications for membership for these is still interested, an application Manager, Tax Counseling for the Elderly next three Panels between June 23 and package will be sent to them directly. Program, OP:C:A:E:E, Building C–7, September 11, 1998. The panels will be Completed applications will be Room 166. operational in the late Fall of 1998. reviewed, tax background checks and FOR FURTHER INFORMATION CONTACT: Ms. The mission of the Panels is to FBI name checks will be conducted, and Karen Bradley, OP:C:A:E:E, Building C– provide citizen input into enhancing panel interviews will be conducted with 7, Room 166, Internal Revenue Service, IRS customer service by identifying the most qualified candidates. Final 5000 Ellin Road, Lanham, MD, 20706. problems and making recommendations candidates will be ranked by experience The non-toll-free telephone number is: for improvement with ‘‘IRS systems and and suitability and then the Secretary of (202) 283–0188. procedures’’; elevate the identified Treasury will review the recommended problems to the appropriate IRS official candidates and make final selections. SUPPLEMENTARY INFORMATION: Authority and monitor the progress to effect The Brooklyn Tax District consists of for the Tax Counseling for the Elderly change; and refer individual taxpayers the New York State counties of Kings (TCE) Program is contained in Section to the appropriate IRS office for (Borough of Brooklyn), Queens, Nassau 163 of the Revenue Act of 1978, Public assistance in resolving their problems. and Suffolk. The Midwest Tax District Law 95–600, (92 Stat. 12810), November The Panels will consist of 7–12 includes the states of Iowa, Nebraska 6, 1978. Regulations were published in volunteer members who serve at the and Wisconsin. The Pacific Northwest the Federal Register at 44 FR 72113 on pleasure of the Secretary of Treasury Tax District includes the states of December 13, 1979. Section 163 gives and will function solely as advisory Alaska, Hawaii, Oregon and the IRS authority to enter into bodies. Washington. cooperative agreements with private or The Panels are seeking applicants Dated: August 6, 1998. public non-profit agencies or who have an interest in good Cathy VanHorn, organizations to establish a network of government, a personal commitment to trained volunteers to provide free tax CAP Project Manager. volunteer approximately 100 hours a information and return preparation year, and a desire to help improve IRS [FR Doc. 98–21558 Filed 8–11–98; 8:45 am] assistance to elderly individuals. customer service. To the extent possible, BILLING CODE 4830±01±P Elderly individuals are defined as the IRS would like to ensure a balanced individuals age 60 and over at the close Panel membership representing a cross- of their taxable year. section of the tax paying public in the DEPARTMENT OF THE TREASURY Cooperative agreements will be each of the Tax Districts. Potential Internal Revenue Service entered into based upon competition candidates must be US citizens, legal among eligible agencies and residents one of the Tax Districts, Tax Counseling for the Elderly (TCE) organizations. Because applications are compliant with Federal, State and Local Program, Availability of Application being solicited before the FY 1999 taxes, and pass an FBI background Packages budget has been approved, cooperative check. For the Citizen Advocacy Panels to be AGENCY: Internal Revenue Service (IRS), agreements will be entered into subject most effective, members should have Treasury. to appropriation of funds. Once funded, sponsoring agencies and organizations experience in some of the following ACTION: Availability of TCE Application areas: experience helping people resolve Packages. will receive a grant from the IRS for problems with a government administrative expenses and to organization; experience formulating SUMMARY: This document provides reimburse volunteers for expenses and presenting proposals; knowledge of notice of the availability of Application incurred in training and in providing taxpayer concerns; experience Packages for the 1999 Tax Counseling tax return assistance. The Tax representing the interests of your for the Elderly (TCE) Program. Counseling for the Elderly (TCE) community, state or region; experience DATES: Application Packages are Program is referenced in the Catalog of working with people from diverse available from the IRS at this time. The Federal Domestic Assistance in Section backgrounds; and experience helping deadline for submitting an application 21.006. people resolve disputes. package to the IRS for the 1999 Tax Jane Warriner, Booz Allen & Hamilton, Inc., will Counseling for the Elderly (TCE) National Director, Compliance, Accounts, manage the selection process. Interested Program is September 10, 1998. and Quality Division. applicants should first call the following ADDRESSES: Application Packages may [FR Doc. 98–21559 Filed 8–11–98; 8:45 am] toll free number, 1–888–449–1071, and be requested by contacting: Internal BILLING CODE 4830±01±P 43234

Corrections Federal Register Vol. 63, No. 155

Wednesday, August 12, 1998

This section of the FEDERAL REGISTER DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY contains editorial corrections of previously published Presidential, Rule, Proposed Rule, Federal Energy Regulatory Federal Energy Regulatory and Notice documents. These corrections are Commission Commission prepared by the Office of the Federal Register. Agency prepared corrections are [Docket No. RP98-272-001] [Docket No. ER97-1431-002, et al.] issued as signed documents and appear in the appropriate document categories Nora Transmission Company; Notice PEC Energy Marketing, Inc., et al.; elsewhere in the issue. of Proposed Changes in FERC Gas Electric Rate and Corporate Regulation Tariff Filings Correction Correction In notice document 98–20992, In notice document 98–21019, appearing on page 42018, in the issue of beginning on page 42026, in the issue of Thursday, August 6, 1998, the docket Thursday, August 6, 1998, the docket number is added to read as set forth number is corrected to read as set forth above. above. BILLING CODE 1505-01-D BILLING CODE 1505-01-D federal register August 12,1998 Wednesday Proposed Rule Federal AcquisitionRegulation(FAR); 48 CFRPartsand31 Administration and Space National Aeronautics Administration General Services Defense Department of Part II 43235 43236 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

DEPARTMENT OF DEFENSE of incentive and concurrent savings to List of Subjects in 48 CFR Parts 48 and 75 percent; and increase the contractors 52 GENERAL SERVICES share of collateral savings to 100 percent Government procurement. ADMINISTRATION on a case-by-case basis for each VECP. The contracting officers unilateral Dated: August 5, 1998. NATIONAL AERONAUTICS AND decision on each of these aspects is Edward C. Loeb, SPACE ADMINISTRATION final. This revision is intended to Director, Federal Acquisition Policy Division. incentivize contractors to submit more Therefore, it is proposed that 48 CFR 48 CFR Parts 48 and 52 value engineering change proposals, by Parts 48 and 52 be amended as set forth allowing contracting officers to [FAR Case 97±031] below: unilaterally increase both the share 1. The authority citation for 48 CFR RIN 9000±AH84 percentage and the sharing period, so Parts 48 and 52 continues to read as that contractors with meritorious follows: Federal Acquisition Regulation; Value proposals may be given adequate Engineering Change Proposals Authority: 40 U.S.C. 486(c); 10 U.S.C. compensation for the effort required to chapter 137; and 42 U.S.C. 2473(c). AGENCIES: Department of Defense (DOD), prepare and negotiate individual change General Services Administration (GSA), proposals. PART 48ÐVALUE ENGINEERING and National Aeronautics and Space B. Regulatory Flexibility Act 2. Section 48.001 is amended by Administration (NASA). The proposed changes may have a revising the definition ‘‘Sharing period’’ ACTION: Proposed rule with request for significant economic impact on a to read as follows: comments. substantial number of small entities 48.001 Definitions. within the meaning of the Regulatory SUMMARY: The Civilian Agency * * * * * Acquisition Council and the Defense Flexibility Act, 5 U.S.C. 601, et seq., Sharing period, as used in this part, Acquisition Regulations Council are because the rule could increase the means— proposing to amend the Federal number of VECP settlements negotiated (1) The period beginning with Acquisition Regulation (FAR) to change between the Government and private acceptance of the first unit the sharing periods and rates that entities. An Initial Regulatory Flexibility incorporating the VECP and ending at contracting officers may establish for Analysis (IRFA) has been prepared and the later of— individual value engineering change is summarized as follows: (i) 36 to 60 months (set at the proposals. This regulatory action was The objective of the rule is to change the discretion of the contracting officer for not subject to Office of Management and sharing periods and rates that contracting each VECP) after the first unit affected Budget review under Executive Order officers may establish for individual VECPs. by the VECP is accepted; or 12866, dated September 30, 1993. This By allowing longer sharing periods and (ii) The last scheduled delivery date is not a major rule under 5 U.S.C. 804. allowing increased contractor sharing rates of an item affected by the VECP under for collateral and concurrent savings, more DATES: Comments should be submitted contractors may find it feasible to submit the instant contract delivery schedule in on or before October 13, 1998 to be VECPs. The rule could increase the number effect at the time the VECP is accepted considered in the formulation of a final of VECP settlements negotiated between the (but see 48.102(g)); or rule. Government and private entities, as the (2) For engineering-development and ADDRESSES: Interested parties should additional flexibility in sharing periods and low-rate-initial-production contracts, a submit written comments to: General contractor sharing rates it provides should period of between 36 and 60 Services Administration, FAR incentivize contractors to submit more consecutive months (set at the Secretariat (MVRS), Attn: Laurie Duarte, VECPs. Therefore, the rule may apply to all discretion of the contracting officer for entities, large and small, that propose VECPs each VECP) that spans the period of 1800 F Street, NW, Room 4035, under Government contracts. Washington, DC 20405. highest planned production, based on E-mail comments submitted over A copy of the IRFA has been planning or production documentation Internet should be addressed to: submitted to the Chief Counsel for at the time the VECP is accepted. farcase.97–[email protected]. Advocacy of the Small Business * * * * * Please cite FAR case 97–031 in all Administration and may be obtained 3. Section 48.102 is amended by correspondence related to this case. from the FAR Secretariat. Comments are redesignating paragraphs (g), (h), and (i) FOR FURTHER INFORMATION CONTACT: The invited. Comments from small entities as (h), (i), and (j), respectively, adding FAR Secretariat, Room 4035, GS concerning the affected FAR subparts a new paragraph (g); and further Building, Washington, DC 20405, (202) will be considered in accordance with 5 amending newly designated paragraph 501–4755, for information pertaining to U.S.C. 610. Such comments must be (h) by removing the last sentence. The status or publication schedules. For submitted separately and should cite 5 added text reads as follows: clarification of content, contact Ms. U.S.C. 601, et seq. (FAR Case 97–031), Linda Klein, Procurement Analyst, at in correspondence. 48.102 Policies. * * * * * (202) 501–3775. Please cite FAR case C. Paperwork Reduction Act 97–031. (g) Sharing periods and sharing rates SUPPLEMENTARY INFORMATION: The Paperwork Reduction Act does are determined on a case-by-case basis not apply because the proposed changes by the contracting officer, using the A. Background to the FAR do not impose recordkeeping guidelines in the definition of ‘‘sharing This proposed rule amends the value or information collection requirements, period’’ at 48.001 and in 48.104–1. In engineering change proposal (VECP) or collections of information from determining whether to establish a guidance in FAR Parts 48 and 52 to offerors, contractors, or members of the sharing period greater than 36 months allow the contracting officer to increase public which require the approval of the or to increase the sharing rate beyond the sharing period from 36 to 60 Office of Management and Budget under the minimum levels in 48.104–1(a), the months; increase the contractors share 44 U.S.C. 3501, et seq. contracting officer shall consider the Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43237 following, as appropriate, and shall (6) Production period remaining at the (4) The contracting officer’s insert supporting rationale in the time of VECP acceptance. determination of the duration of the contract file: (7) Number of units affected. sharing period and the contractor’s (1) Extent of the change. * * * * * sharing rate. 4. Section 48.103 is amended by (2) Complexity of the change. 5. Section 48.104–1 is amended by adding paragraph (c)(4) to read as revising the table in paragraph (a)(1) to (3) Development risk (e.g., follows: read as follows: contractor’s financial risk). 48.103 Processing value engineering 48.104±1 Sharing acquisition savings. (4) Development cost. change proposals. (5) Performance and/or reliability * * * * * (a) Supply or service contracts. (1) impact. (c) * * * *** Government/Contractor Shares of Net Acquisition Savings [Figures in percent]

Sharing arrangement Incentive Program requirement (Voluntary) (Mandatory) Contract type Concurrent Concurrent Instant con- and future Instant con- and future tract rate contract tract rate contract rate rate

Fixed-price (includes fixed-price-award-fee; excludes other fixed-price incentive con- tracts) ...... *50/50 *50/50 75/25 75/25 Incentive (fixed-price or cost) (other than award fee) ...... (**) *50/50 (**) 75/25 Cost-reimbursement (includes cost-plus-award-fee; excludes other cost-type incentive contracts) ...... ***75/25 ***75/25 85/15 85/15 * The contracting officer may increase the contractor's sharing rate to as high as 75 percent for each VECP. See 48.102(g)(1) through (7). ** Same sharing arrangement as the contract's profit or fee adjustment formula. *** The contracting officer may increase the contractor's sharing rate to as high as 50 percent for each VECP. See 48.102(g)(1) through (7).

* * * * * PART 52ÐSOLICITATION PROVISIONS (i) 36 to 60 months (set at the discretion AND CONTRACT CLAUSES of the Contracting Officer for each VECP) 6. Section 48.104–2 is amended by after the first unit affected by the VECP is revising paragraph (b) to read as follows: 7. Section 52.248–1 is amended in the accepted; or (ii) The last scheduled delivery date of an 48.104±2 Sharing collateral savings. introductory paragraph by revising the first sentence and removing the last item affected by the VECP under this * * * * * sentence; by revising the date of the contract’s delivery schedule in effect at the time the VECP is accepted; or (b) The contractor’s share of collateral clause; and in the clause, in paragraph (2) For engineering-development and low- savings may range from 20 to 100 (b) by revising the definition ‘‘Sharing rate-initial-production contracts, a period of percent of the estimated savings to be period’’; in paragraph (e)(3) by revising between 36 and 60 consecutive months (set realized during an average year of use the last sentence; in paragraph (f)(3) by at the discretion of the Contracting Officer for but shall not exceed the contract’s firm- revising the table; and in paragraph (j) each VECP) that spans the period of highest fixed-price, target price, target cost, or by revising the first sentence. The planned production, based on planning or estimated cost, at the time the VECP is revised text reads as follows: production documentation at the time the VECP is accepted. accepted, or $100,000, whichever is 52.248±1 Value Engineering. greater. The contractor’s sharing rate is * * * * * determined by the contracting officer for As prescribed in 48.201, insert the (e) * * * each VECP. In determining collateral following clause. * ** (3) * * * The Contracting Officer’s savings, the contracting officer shall Value Engineering (XXX) unilateral decisions whether to accept or reject all or part of any VECP, as to which consider any degradation of * * * * * of the sharing rates applies, and as to the performance, service life, or capability. (b) Definitions. duration of the sharing period shall be final (See 48.104–1(a)(4) for payment of * * * * * and not subject to the Disputes clause or collateral savings through the instant Sharing period, as used in this clause, otherwise subject to litigation under the contract.) means— Contract Disputes Act of 1978 (41 U.S.C. (1) The period beginning with acceptance 601–613). of the first unit incorporating the VECP and (f) * * * ending at the later of— (3) * * * 43238 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

CONTRACTOR'S SHARE OF NET ACQUISITION SAVINGS [Figures in percent]

Sharing Arrangement Incentive Program requirement (Voluntary) (Mandatory) Contract type Concurrent Concurrent Instant con- and future instant con- and future tract rate contract tract rate contract rate rate

Fixed-price (includes fixed-price-award-fee; excludes other fixed-price incentive con- tracts) ...... * 50 *50 25 25 Incentive (fixed-price or cost) (other than award fee) ...... (**) *50 (**) 25 Cost-reimbursement (includes cost-plus-award-fee; excludes other cost-type incentive contracts) ...... *** 25 *** 25 15 15 * The Contracting Officer may increase the Contractor's sharing rate to as high as 75 percent for each VECP. ** Same sharing arrangement as the contract's profit or fee adjustment formula. *** The Contracting Officer may increase Contractor's sharing rate to as high as 50 percent for each VECP.

* * * * * Office of Management and Budget FAR 31.205–34(c) has been deleted (j) Collateral savings. If a VECP is review under Executive Order 12866, since excessive compensation is already accepted, the instant contract amount dated September 30, 1993. This is not a adequately addressed at FAR 31.205–6, shall be increased, as specified in major rule under 5 U.S.C. 804. Compensation for personal services. subparagraph (h)(5) of this subsection, DATES: Comments should be submitted B. Regulatory Flexibility Act by a rate from 20 to 100 percent, as on or before October 13, 1998 to be determined by the Contracting Officer, considered in the formulation of a final This proposed rule is not expected to of any projected collateral savings rule. have a significant economic impact on a substantial number of small entities determined to be realized in a typical ADDRESSES: Interested parties should year of use after subtracting any submit written comments to: General within the meaning of the Regulatory Government costs not previously offset. Services Administration, FAR Flexibility Act, 5 U.S.C. 601, et seq., *** Secretariat (MVR), Attn: Laurie Duarte, because most contracts awarded to * * * * * 1800 F Street, NW, Room 4035, small entities use simplified acquisition [FR Doc. 98–21441 Filed 8–11–98; 8:45 am] Washington, DC 20405. procedures or are awarded on a competitive, fixed-price basis, and do BILLING CODE 6820±EP±P E-mail comments submitted over Internet should be addressed to: not require application of the cost farcase.98–[email protected]. principles contained in this rule. An DEPARTMENT OF DEFENSE Please cite FAR case 98–001 in all Initial Regulatory Flexibility Analysis correspondence related to this case. has, therefore, not been performed. GENERAL SERVICES Comments are invited from small FOR FURTHER INFORMATION CONTACT: The ADMINISTRATION businesses and other interested parties. FAR Secretariat, Room 4035, 1800 F Comments from small entities Street, NW, Washington, DC 20405, NATIONAL AERONAUTICS AND concerning the affected FAR subpart (202) 501–4755, for information SPACE ADMINISTRATION also will be considered in accordance pertaining to status or publication with 5 U.S.C. 610 of the Act. Such schedules. For clarification of content, 48 CFR Part 31 comments must be submitted separately contact Ms. Linda Nelson, Procurement [FAR Case 98±001] and should cite 5 U.S.C. 601, et seq. Analyst, at (202) 501–1900. Please cite (FAR case 98–001), in correspondence. RIN 9000±AI06 FAR case 98–001. SUPPLEMENTARY INFORMATION: C. Paperwork Reduction Act Federal Acquisition Regulation; Recruitment Costs Principle A. Background The Paperwork Reduction Act does not apply because the proposed changes AGENCIES: Department of Defense (DOD), The proposed rule amends FAR to the FAR do not impose recordkeeping General Services Administration (GSA), 31.205–1, Public relations and or information collection requirements, and National Aeronautics and Space advertising costs, and FAR 31.205–34, or collections of information from Administration (NASA). Recruitment costs, to remove excessive offerors, contractors, or members of the ACTION: Proposed rule with request for wording and details for streamlining public which require the approval of the comments. purposes. FAR 31.205–1(d) was revised Office of Management and Budget under to indicate that the allowability of 44 U.S.C. 3501, et seq. SUMMARY: The Civilian Agency recruitment expenses in connection Acquisition Council and the Defense with advertising costs is addressed at List of Subjects in 48 CFR Part 31 Acquisition Regulations Council are FAR 31.205–34. Certain restrictive Government procurement. proposing to amend the Federal language at FAR 31.205–34 was Dated: August 5, 1998. Acquisition Regulation (FAR) to revise removed since the normal standards at the ‘‘recruitment costs’’ and the ‘‘public FAR 31.201–3, Determining Edward C. Loeb, relations and advertising costs’’ cost reasonableness, and FAR 31.201–4, Director, Federal Acquisition Policy Division. principles for streamlining purposes. Determining allocability, applies to Therefore, it is proposed that 48 CFR This regulatory action was not subject to these types of expenses. In addition, Part 31 be amended as set forth below: Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43239

PART 31ÐCONTRACT COST DEPARTMENT OF DEFENSE contractor personnel consistent with PRINCIPLES AND PROCEDURES business class airfare requirements in GENERAL SERVICES the Joint Travel Regulations and the 1. The authority citation for 48 CFR ADMINISTRATION Federal Travel Regulation for Part 31 continues to read as follows: Government personnel. NATIONAL AERONAUTICS AND Authority: 40 U.S.C. 486(c); 10 U.S.C. SPACE ADMINISTRATION B. Regulatory Flexibility Act chapter 137; and 42 U.S.C. 2473(c). This proposed rule is not expected to 48 CFR Part 31 2. Section 31.205–1 is amended by have a significant economic impact on revising paragraph (d) to read as [FAR Case 97±040] a substantial number of small entities within the meaning of the Regulatory follows: RIN 9000±AH98 Flexibility Act, 5 U.S.C. 601, et seq., 31.205±1 Public relations and advertising because most contracts awarded to costs. Federal Acquisition Regulation; Business Class Airfare small entities use simplified acquisition * * * * * procedures or are awarded on a (d) The only allowable advertising AGENCIES: Department of Defense (DOD), competitive, fixed-price basis, and do costs are those that are— General Services Administration (GSA), not require applications of the cost and National Aeronautics and Space (1) Specifically required by contract, principle contained in this rule. An Administration (NASA). or that arise from requirements of Initial Regulatory Flexibility Analysis Government contracts, and that are ACTION: Proposed rule. has, therefore, not been performed. exclusively for— Comments from small entities SUMMARY: The Civilian Agency concerning the affected FAR subpart (i) Acquiring scarce items for contract Acquisition Council and the Defense will be considered in accordance with 5 performance; or Acquisition Regulations Council are U.S.C. 610 of the Act. Such comments (ii) Disposing of scrap or surplus proposing to amend the Federal must be submitted separately and materials acquired for contract Acquisition Regulation (FAR) to revise should cite 5 U.S.C. 601, et seq. (FAR performance; the ‘‘travel costs’’ cost principle to case 97–040), in correspondence. allow, in certain conditions, business (2) Costs of activities to promote sales class airfare costs for flights lasting more C. Paperwork Reduction Act of products normally sold to the U.S. than 14 hours. This regulatory action The Paperwork Reduction Act does Government, including trade shows, was not subject to Office of Management not apply because the proposed changes which contain a significant effort to and Budget review under Executive to the FAR do not impose recordkeeping promote exports from the United States. Order 12866, dated September 30, 1993. or information collection requirements, Such costs are allowable, This is not a major rule under 5 U.S.C. or collections of information from notwithstanding paragraphs (f)(1), (f)(3), 804. offerors, contractors, or members of the (f)(4)(ii), and (f)(5) of this subsection. DATES: public which require the approval of the However, such costs do not include the Comments should be submitted Office of Management and Budget under costs of memorabilia (e.g., models, gifts, on or before October 13, 1998 to be 44 U.S.C. 3501, et seq. and souvenirs), alcoholic beverages, considered in the formulation of a final entertainment, and physical facilities rule. List of Subjects in 48 CFR Part 31 ADDRESSES: Interested parties should that are used primarily for Government procurement. entertainment rather than product submit written comments to: General promotion; or Services Administration, FAR Dated: August 5, 1998. Secretariat (MVR), 1800 F Street, NW, Edward C. Loeb, (3) Allowable in accordance with Room 4035, Washington, DC 20405. Director, Federal Acquisition Policy Division. 31.205–34. E-mail comments submitted over Therefore, it is proposed that 48 CFR * * * * * Internet should be addressed to: Part 31 be amended as set forth below: 3. Section 31.205–34 is amended in farcase.97–[email protected]. the introductory text of paragraph (a) by Please cite FAR case 97–040 in all PART 31ÐCONTRACT COST removing ‘‘paragraphs (b) and (c) correspondence related to this case. PRINCIPLES AND PROCEDURES below,’’ and adding ‘‘paragraph (b) of FOR FURTHER INFORMATION CONTACT: The this subsection,’’ in its place; revising FAR Secretariat, Room 4035, GS 1. The authority citation for 48 CFR paragraph (b); and removing paragraph Building, Washington, DC 20405, (202) Part 31 continues to read as follows: (c) to read as follows: 501–4755, for information pertaining to Authority: 40 U.S.C. 486(c); 10 U.S.C. status or publication schedules. For chapter 137; and 42 U.S.C. 2473(c). 31.205±34 Recruitment costs. clarification of content, contact Ms. 2. Section 31.205–46 is amended by * * * * * Linda Nelson, Procurement Analyst, at revising paragraph (d) to read as (b) Help-wanted advertising costs are (202) 501–1900. Please cite FAR case follows: unallowable if the advertising— 97–040. 31.205±46 Travel costs. (1) Does not describe specific SUPPLEMENTARY INFORMATION: positions or classes of positions; or * * * * * A. Background (d)(1) Airfare costs in excess of the (2) Includes material that is not The proposed rule revises paragraph lowest customary standard, coach, or relevant for recruitment purposes, such (d) of FAR 31.205–46, travel costs, to equivalent airfare offered during normal as extensive illustrations or descriptions allow, under certain conditions, business hours are unallowable, except of the company’s products or contractor costs for business class as permitted in paragraph (d)(2) of this capabilities. airfare on flights lasting more than 14 section or when it is documented and [FR Doc. 98–21443 Filed 8–11–98; 8:45 am] hours. This FAR revision will make justified that such standard, coach, or BILLING CODE 6820±EP±P business class airfare requirements for equivalent accommodations— 43240 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

(i) Excessively prolong travel; (vi) Are not reasonably available to (ii) Scheduled flight time (including (ii) Require circuitous routing; meet mission requirements; or stopovers) is in excess of 14 hours. (vii) Are on a foreign carrier that lacks (iii) Require travel during (iii) The traveler does not receive a adequate sanitation or health standards. unreasonable hours; (2) Business class airfare costs are rest stop en route or a rest period upon (iv) Result in increased costs that allowable when all of the following arrival at the destination point. would offset transportation savings; apply and are documented: * * * * * (v) Are not reasonably adequate for (i) Either the origin or destination [FR Doc. 98–21442 Filed 8–11–98; 8:45 am] the physical or medical needs of the point is outside the continental United BILLING CODE 6820±EP±P traveler; States. federal register August 12,1998 Wednesday Standards; ProposedRule Security andElectronicSignature 45 CFRPart142 Office oftheSecretary Services Health andHuman Department of Part III 43241 43242 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

DEPARTMENT OF HEALTH AND address: [email protected]. For service of the U.S. Government Printing HUMAN SERVICES e-mail comment procedures, see the Office. Free public access is available on beginning of SUPPLEMENTARY a Wide Area Information Server (WAIS) Office of the Secretary INFORMATION. For further information on through the Internet and via ordering copies of the Federal Register asynchronous dial-in. Internet users can 45 CFR Part 142 containing this document and on access the database by using the World [HCFA±0049±P] electronic access, see the beginning of Wide Web, http://www.access.gpo.gov/ SUPPLEMENTARY INFORMATION. nara/, by using local WAIS client RIN 0938±AI57 FOR FURTHER INFORMATION CONTACT: John software, or by telnet to Security and Electronic Signature Parmigiani, (410) 786–2976. swais.access.gpo.gov, then login as guest Standards SUPPLEMENTARY INFORMATION: (no password required). Dial-in users should use communications software AGENCY: Health Care Financing E-Mail, Comments, Procedures, and modem to call (202) 512–1661; type Administration (HCFA), HHS. Availability of Copies, and Electronic swais, then login as guest (no password ACTION: Proposed rule. Access required). E-mail comments should include the SUMMARY: This rule proposes standards I. Background full name, postal address, and affiliation for the security of individual health (if applicable) of the sender and must be [Please label written or e-mailed comments information and electronic signature use submitted to the referenced address to about this section with the subject: by health plans, health care Background] be considered. All comments should be clearinghouses, and health care incorporated in the e-mail message In order to administer their programs, providers. The health plans, health care because we may not be able to access the Department of Health and Human clearinghouses, and health care attachments. Services, other Federal agencies, State providers would use the security Because of staffing and resource Medicaid agencies, private health plans, standards to develop and maintain the limitations, we cannot accept comments health care providers, and health care security of all electronic individual by facsimile (FAX) transmission. In clearinghouses must assure their health information. The electronic commenting, please refer to file code customers (such as patients, insured, signature standard is applicable only HCFA–0049–P and the specific section providers, and health care plans) that with respect to use with the specific or sections of the proposed rule. Both the confidentiality and privacy of health transactions defined in the Health electronic and written comments care information they electronically Insurance Portability and received by the time and date indicated collect, maintain, use, or transmit is Accountability Act of 1996, and when it above will be available for public secure. Security of health information is has been determined that an electronic inspection as they are received, especially important when health signature must be used. generally beginning approximately 3 information can be directly linked to an The use of these standards would weeks after publication of a document, individual. improve the Medicare and Medicaid in Room 309–G of the Department’s Confidentiality is threatened not only programs, and other Federal health offices at 200 Independence Avenue, by the risk of improper access to programs and private health programs, SW., Washington, DC, on Monday electronically stored information, but and the effectiveness and efficiency of through Friday of each week from 8:30 also by the risk of interception during the health care industry in general. This a.m. to 5 p.m. (phone: (202) 690–7890). electronic transmission of the rule would implement some of the Electronic and legible written comments information. requirements of the Administrative will also be posted, along with this In addition to the need to ensure Simplification subtitle of the Health proposed rule, at the following web site: electronic health care information is Insurance Portability and http://aspe.os.dhhs.gov/admnsimp/. secure and confidential, there is a Accountability Act of 1996. Copies: To order copies of the Federal potential need to associate signature DATES: Comments will be considered if Register containing this document, send capability with information being we receive them at the appropriate your request to: New Orders, electronically stored or transmitted. address, as provided below, no later Superintendent of Documents, P.O. Box Today, there are numerous forms of than 5 p.m. on October 13, 1998. 371954, Pittsburgh, PA 15250–7954. electronic signatures, ranging from ADDRESSES: Mail written comments (1 Specify the date of the issue requested biometric devices to digital signature. original and 3 copies) to the following and enclose a check or money order To satisfy the legal and time-tested address: Health Care Financing payable to the Superintendent of characteristics of a written signature, Administration, Department of Health Documents, or enclose your Visa or however, an electronic signature must and Human Services, Attention: HCFA– Master Card number and expiration do the following: 0049–P, P.O. Box 26585, Baltimore, MD date. Credit card orders can also be • Identify the signatory individual, 21207–0519. placed by calling the order desk at (202) • Assure the integrity of a document’s If you prefer, you may deliver your 512–1800 or by faxing to (202) 512– content, and written comments (1 original and 3 2250. The cost for each copy is $8. As • Provide for nonrepudiation; that is, copies) to one of the following an alternative, you can view and strong and substantial evidence that will addresses: photocopy the Federal Register make it difficult for the signer to claim Room 309–G, Hubert H. Humphrey document at most libraries designated that the electronic representation is not Building, 200 Independence Avenue, as Federal Depository Libraries and at valid. Currently, the only technically SW., Washington, DC 20201, or many other public and academic mature electronic signature meeting the Room C5–09–26, 7500 Security libraries throughout the country that above criteria is the digital signature. Boulevard, Baltimore, MD 21244– receive the Federal Register. There is no national standard for 1850. This Federal Register document is security or electronic signatures. Of Comments may also be submitted also available from the Federal Register necessity, each health care provider, electronically to the following e-mail online database through GPO Access, a health care plan, and health care entity Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43243 has defined its own security organization accredited by the American Secretary of Commerce), and standards requirements. National Standards Institute (ANSI)) for the transmission of data elements that has consulted with the National needed for the coordination of benefits A. Legislation Uniform Billing Committee (NUBC), the and sequential processing of claims. The Congress included provisions to National Uniform Claim Committee Compliance with electronic signature address the need for security and (NUCC), Workgroup for Electronic Data standards will be deemed to satisfy both electronic signature standards and other Interchange (WEDI), and the American State and Federal requirements for administrative simplification issues in Dental Association (ADA). written signatures with respect to the the Health Insurance Portability and • The Secretary may also adopt a transactions listed in paragraph (a) of Accountability Act of 1996 (HIPAA), standard other than one established by section 1173 of the Act. Public Law 104–191, which was enacted a standard setting organization, if the In section 1174 of the Act, the on August 21, 1996. Through subtitle F different standard will reduce costs for Secretary is required to establish of title II of that law, the Congress added health care providers and health plans, standards for all of the above to title XI of the Social Security Act a the different standard is promulgated transactions, except claims attachments, new part C, entitled ‘‘Administrative through negotiated rulemaking by February 21, 1998. The standards for Simplification.’’ (Public Law 104–191 procedures, and the Secretary consults claims attachments must be established affects several titles in the United States with each of the above-named groups. by February 21, 1999. Generally, after a Code. Hereafter, we refer to the Social • If no standard has been adopted by standard is established, it cannot be Security Act as the Act; we refer to the any standard setting organization, the changed during the first year after other laws cited in this document by Secretary must rely on the adoption except for changes that are their names.) The purpose of this part C recommendations of the National necessary to permit compliance with the is to improve the Medicare and Committee on Vital and Health standard. Modifications to any of these Medicaid programs, in particular, and Statistics (NCVHS) and consult with standards may be made after the first the efficiency and effectiveness of the each of the above-named groups. year, but not more frequently than once health care system, in general, by In complying with the requirements every 12 months. The Secretary must encouraging the development of a of part C of title XI, the Secretary must also ensure that procedures exist for the health information system through the rely on the recommendations of the routine maintenance, testing, establishment of standards and NCVHS, consult with appropriate State, enhancement, and expansion of code requirements to facilitate the electronic Federal, and private agencies or sets and that there are crosswalks from maintenance and transmission of certain organizations, and publish the NCVHS prior versions. health information. recommendations in the Federal Section 1175 of the Act prohibits Part C of title XI of the Act consists Register. health plans from refusing to process or of sections 1171 through 1179. These Paragraph (a) of section 1173 of the delaying the processing of a transaction sections define various terms and Act requires that the Secretary adopt that is presented in standard format. impose several requirements on HHS, standards for financial and The Act’s requirements are not limited health plans, health care clearinghouses, administrative transactions, and data to health plans; however, each person to and certain health care providers elements for those transactions, to whom a standard or implementation concerning electronic transmission of enable health information to be specification applies is required to health information. exchanged electronically. Standards are comply with the standard within 24 The first section, section 1171 of the required for the following transactions: months (or 36 months for small health Act, establishes definitions for purposes health claims, health encounter plans) of its adoption. A health plan or of part C of title XI for the following information, health claims attachments, other entity may, of course, comply terms: code set, health care health plan enrollments and voluntarily before the effective date. A clearinghouse, health care provider, disenrollments, health plan eligibility, person may comply by using a health health information, health plan, health care payment and remittance care clearinghouse to transmit or receive individually identifiable health advice, health plan premium payments, the standard transactions. Compliance information, standard, and standard first report of injury, health claim status, with modifications to standards or setting organization. and referral certification and implementation specifications must be Section 1172 of the Act makes any authorization. In addition, the Secretary accomplished by a date designated by standard adopted under part C is required to adopt standards for any the Secretary. This date may not be applicable to: (1) Health plans, (2) other financial and administrative earlier than 180 days from the notice of health care clearinghouses, and (3) transactions that are determined to be change. health care providers that transmit any appropriate by the Secretary. Section 1176 of the Act establishes a health information in electronic form in Paragraph (b) of section 1173 of the civil monetary penalty for violation of connection with the transactions Act requires the Secretary to adopt the provisions in part C of title XI of the referred to in section 1173(a)(1) of the standards for unique health identifiers Act, subject to several limitations. Act. The security standard to be adopted for all individuals, employers, health Penalties may not be more than $100 under Part C is not restricted to the plans, and health care providers and per person per violation and not more transactions referred to in section requires further that the adopted than $25,000 per person for violations of 1173(a)(1) of the Act, but is applicable standards specify for what purposes a single standard for a calendar year. to any health information pertaining to unique health identifiers may be used. The procedural provisions in section an individual that is electronically Paragraphs (c) through (f) of section 1128A of the Act, ‘‘Civil Monetary maintained or transmitted. This section 1173 of the Act require the Secretary to Penalties,’’ are applicable. also contains the following establish standards for code sets for Section 1177 of the Act establishes requirements concerning standard each data element for each health care penalties for a knowing misuse of setting: transaction listed above, security unique health identifiers and • The Secretary may adopt a standard standards for health care information individually identifiable health developed, adopted, or modified by a systems, standards for electronic information: (1) A fine of not more than standard setting organization (that is, an signatures (established together with the $50,000 and/or imprisonment of not 43244 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules more than 1 year; (2) if misuse is ‘‘under matter of the teams includes claims/ 1. Improve the efficiency and false pretenses,’’ a fine of not more than encounters, identifiers, enrollment/ effectiveness of the health care system $100,000 and/or imprisonment of not eligibility, systems security and by leading to cost reductions for or more than 5 years; and (3) if misuse is electronic signature, and medical coding improvements in benefits from with intent to sell, transfer, or use classification. Another team addresses electronic health care transactions. individually identifiable health cross-cutting issues and coordinates the 2. Meet the needs of the health data information for commercial advantage, subject matter teams. The teams consult standards user community, particularly personal gain, or malicious harm, a fine with external groups such as the health care providers, health plans, and of not more than $250,000 and/or NCVHS’ Workgroup on Data Standards, health care clearinghouses. imprisonment of not more than 10 WEDI, the ANSI’s Healthcare 3. Be consistent and uniform with the years. Note that these penalties do not Informatics Standards Board (HISB), the other HIPAA standards—their data affect any other penalties which may be NUCC, the NUBC, and the ADA. The element definitions and codes and their imposed by other Federal programs, teams are charged with developing privacy and security requirements— including ERISA. regulations and other necessary and, secondarily, with other private and Under section 1178 of the Act, the documents and making public sector health data standards. provisions of part C of title XI of the recommendations for the various 4. Have low additional development Act, as well as any standards standards to the HHS Data Council and implementation costs relative to the established under them, supersede any through its Committee on Health Data benefits of using the standard. State law that is contrary to them. Standards. (The HHS Data Council is 5. Be supported by an ANSI- However, the Secretary may, for the focal point for consideration of data accredited standards developing statutorily-specified reasons, waive this policy issues. It reports directly to the organization or other private or public provision. Secretary and advises the Secretary on organization that will ensure continuity Finally, section 1179 of the Act makes data standards and privacy issues.) and efficient updating of the standard the above provisions inapplicable to 2. Develop recommendations for over time. financial institutions or anyone acting standards to be adopted. 6. Have timely development, testing, on behalf of a financial institution when 3. Publish proposed rules in the implementation, and updating ‘‘authorizing, processing, clearing, Federal Register describing the procedures to achieve administrative settling, billing, transferring, standards. Each proposed rule provides simplification benefits faster. 7. Be technologically independent of reconciling, or collecting payments for a the public with a 60-day comment the computer platforms and financial institution.’’ period. transmission protocols used in 4. Analyze public comments and (Concerning this last provision, the electronic health transactions, except conference report, in its discussion on publish the final rules in the Federal when they are explicitly part of the section 1178, states: Register. ‘‘The conferees do not intend to exclude standard. 5. Distribute standards and coordinate 8. Be precise and unambiguous, but as the activities of financial institutions or their preparation and distribution of contractors from compliance with the simple as possible. standards adopted under this part if such implementation guides. 9. Keep data collection and activities would be subject to this part. This strategy affords many paperwork burdens on users as low as However, conferees intend that this part does opportunities for involvement of is feasible. not apply to use or disclosure of information interested and affected parties in 10. Incorporate flexibility to adapt when an individual utilizes a payment standards development and adoption by more easily to changes in the health care system to make a payment for, or related to, enabling them to: infrastructure (such as new services, health plan premiums or health care. For • Participate with standards setting example, the exchange of information organizations, and provider types) and organizations. information technology. between participants in a credit card system • in connection with processing a credit card Provide written input to the A master data dictionary providing for NCVHS. common data definitions across the payment for health care would not be • covered by this part. Similarly sending a Provide written input to the standards selected for implementation checking account statement to an account Secretary of HHS. under HIPAA will be developed and holder who uses a credit or debit card to pay • Provide testimony at NCVHS’’ maintained. We intend for the data for health care services, would not be public meetings. element definitions to be precise, covered by this part. However, this part does • Comment on the proposed rules for unambiguous, and consistently applied. apply if a company clears health care claims, each of the proposed standards. The transaction-specific reports and the health care claims activities remain • Invite HHS staff to meetings with subject to the requirements of this part.’’) general reports from the master data (H.R. Rep. No. 736, 104th Cong., 2nd Sess. public and private sector organizations dictionary will be readily available to 268–269 (1996)) or meet directly with senior HHS staff the public. At a minimum, the involved in the implementation process. information presented will include data B. Process for Developing National The implementation teams charged element names, definitions, and Standards with reviewing standards for appropriate references to the The Secretary has formulated a five- designation as required national transactions where they are used. part strategy for developing and standards under the statute have This proposed rule would establish implementing the standards mandated defined, with significant input from the the security standard and electronic under part C of title XI of the Act: health care industry, a set of principles signature standard for health care 1. To ensure necessary interagency for guiding choices for the standards to information and individually coordination and required interaction be adopted by the Secretary. These identifiable health care information with other Federal departments and the principles are based on direct maintained or transmitted private sector, establish specifications in HIPAA, the purpose of electronically. The remaining standards interdepartmental implementation the law, and generally desirable are grouped, to the extent possible, by teams to identify and assess potential principles. To be designated as an subject matter and audience in other standards for adoption. The subject HIPAA standard, each standard should: regulations. We anticipate publishing Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43245 several separate regulation documents care providers. With the exception of The law applies to health plans for all to promulgate the remaining standards the security regulation, we would have transactions. Section 142.104 would required under HIPAA. the regulations apply to any health care contain the following provisions (from provider only when electronically section 1175 of the Act): II. Provisions of this Proposed Rule transmitting any of the transactions to If a person desires to conduct a [Please label written comments or e-mailed which section 1173(a)(1) of the Act transaction (as defined in § 142.103) comments about this section with the subject: refers. with a health plan as a standard Introduction/Applicability] Electronic transmissions would transaction, the following apply: We propose to add a new part to title include transactions using all media, (1) The health plan may not refuse to 45 of the Code of Federal Regulations even when the information is physically conduct the transaction as a standard for health plans, health care providers, moved from one location to another transaction. and health care clearinghouses in using magnetic tape, disk, or compact (2) The health plan may not delay the general. The new part would be part 142 disc (cd) media. Transmissions over the transaction or otherwise adversely of title 45 and would be titled Internet (wide-open), Extranet (using affect, or attempt to adversely affect, the ‘‘Administrative Requirements.’’ Internet technology to link a business person or the transaction on the basis Subpart A would contain the general with information only accessible to that the transaction is a standard provisions for this part, including the collaborating parties), leased lines, dial- transaction. general definitions and general up lines, and private networks are all (3) The information transmitted and requirements for health plans. Subpart C included. Telephone voice response and received in connection with the would contain provisions specific to ‘‘faxback’’ (a request for information transaction must be in the form of securing health information used in any made via voice using a fax machine and standard data elements of health electronic transmission or stored format. requested information returned via that information. In this proposed rule, we propose a same machine as a fax) systems would As a further requirement, we would standard for security of health not be included. We solicit comments provide that a health plan that conducts information. This rule would establish concerning any adverse impact the transactions through an agent assure that health plans, health care above statement concerning voice that the agent meets all the requirements clearinghouses, and health care response or faxback may have upon the of part 142 that apply to the health plan. providers must have the security security of the health information in the Section 142.105 would state that a standard in place to comply with the commenter’s care. person or other entity may meet the statutory requirement that health care With the exception of the security transaction requirements of § 142.104 by information and individually regulation, our regulations would apply either— identifiable health care information be to health care clearinghouses when (1) Transmitting and receiving protected to ensure privacy and transmitting transactions to, and standard data elements, or confidentiality when health information receiving transactions from, a health (2) Submitting nonstandard data is electronically stored, maintained, or care provider or health plan that elements to a health care clearinghouse transmitted. The Congress mandated a transmits and receives standard for processing into standard data separate standard for electronic transactions (as defined under elements and transmission by the health signature, therefore, this proposed ‘‘transaction’’) and at all times when care clearinghouse and receiving security standard also addresses the transmitting to or receiving electronic standard data elements through the selected standard for electronic transactions from another health care clearinghouse. signature. The proposed security clearinghouse. The security regulation Health care clearinghouses would be standard does not require the use of an would apply to health care clearing able to accept nonstandard transactions electronic signature, but specifies the houses electronically maintaining or for the sole purpose of translating them standard for an electronic signature that transmitting any health information into standard transactions for sending must be followed if such a signature is pertaining to an individual. customers and would be able to accept used. If an entity elects to use an Entities that offer on-line interactive standard transactions and translate them electronic signature, it must comply transmission must comply with the into nonstandard formats for receiving with the electronic signature standard. standards. The Hypertext Markup customers. We would state in § 142.105 Language (HTML) interaction between a that the transmission of nonstandard A. Applicability server and a browser by which the data transactions, under contract, between a With the exception of the security elements of a transaction are solicited health plan or a health care provider provisions, section 262 of HIPAA from a user would not have to use the and a health care clearinghouse would applies to any health plan, any health standards (with the exception of the not violate the law. care clearinghouse, and any health care security standard), although the data With the exception of the security provider that transmits any health content must be equal to that required standard, transmissions within a information in electronic form in for the standard. Once the data elements corporate entity would not be required connection with transactions referred to are assembled into a transaction by the to comply with the standards. A in section 1173(a)(1) of the Act. The server, the transmitted transaction hospital that is wholly owned by a security provisions of section 262 of would have to comply with the managed care company would not have HIPAA apply to any health plan, any standards. to use the transaction standards to pass health care clearinghouse, and any With the exception of the security encounter information back to the home health care provider that electronically portion, the law would apply to each office, but it would have to use the maintains or transmits any health health care provider when transmitting standard claims transaction to submit a information relating to an individual. or receiving any of the specified claim to another payer. Another Our proposed rules (at 45 CFR electronic transactions. The security example might be transactions within 142.102) would apply to the health regulation would apply to each health Federal agencies and their contractors plans and health care clearinghouses as care provider electronically maintaining and between State agencies within the well, but we would clarify the statutory or transmitting any health information same State. For example, Medicare language in our regulations for health pertaining to an individual. enters into contracts with insurance 43246 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules companies and common working file implication that HHS should rely on provider’’ as the statute does and clarify sites that process Medicare claims using such recommendations to adopt such that the definition of a health care government furnished software. There is standards or propose the passage of provider is limited to those entities that constant communication, on a private such legislation by the Congress. We furnish, or bill and are paid for, health network, between HCFA Central Office solicit comments on whether the care services in the normal course of and the Medicare carriers, standard proposed below for electronic business. intermediaries, and common working signatures would be appropriate for For a more detailed discussion of the file sites. This communication may consideration as part of such standards. definition of health care provider, we continue in nonstandard mode. refer the reader to our proposed rule, B. Definitions However, these contractors would be HCFA–0045-P, Standard Health Care required to comply with the transaction [Please label written or e-mailed comments Provider, 63 FR 25320, published May standards when exchanging any of the about this section with the subject: 7, 1998. transactions covered by HIPAA with an Definitions] 4. Health Information entity outside these ‘‘corporate’’ Section 1171 of the Act defines boundaries. several terms and our proposed rules ‘‘Health information,’’ as defined in The security standard is applicable to would, for the most part, simply restate section 1171 of the Act, means any all health care information the law. The terms that we are defining information, whether oral or recorded in electronically maintained or used in an in this proposed rule follow: any form or medium, that— electronic transmission, regardless of • Is created or received by a health format (standard transaction or a 1. Code Set care provider, health plan, public health proprietary format); no distinction is We would define ‘‘code set’’ as authority, employer, life insurer, school made between internal corporate entity section 1171(1) of the Act does: ‘‘code or university, or health care communication or communication set’’ means any set of codes used for clearinghouse; and external to the corporate entity. encoding data elements, such as tables • Relates to the past, present, or Although there are situations in of terms, medical concepts, medical future physical or mental health or which the use of the standards is not diagnostic codes, or medical procedure condition of an individual; the required (for example, health care codes. provision of health care to an providers may continue to submit paper individual; or the past, present, or claims and employers are not required 2. Health Care Clearinghouse future payment for the provision of to use any of the standard transactions), We would define ‘‘health care health care to an individual. we stress that a standard may be used clearinghouse’’ as section 1171(2) of the We propose the same definition for voluntarily in any situation in which it Act does, but we are adding a further, our regulations. clarifying sentence. The statute defines is not required. 5. Health Plan This proposed regulation would not a ‘‘health care clearinghouse’’ as a mandate the use of electronic signatures public or private entity that processes or We propose that a ‘‘health plan’’ be with any specific transaction at this facilitates the processing of nonstandard defined essentially as section 1171 of time. Instead, the regulation proposes data elements of health information into the Act defines it. Section 1171 of the that whenever an electronic signature is standard data elements. We would Act cross refers to definitions in section required for an electronic transaction by further explain that such an entity is 2791 of the Public Health Service Act law, regulation, or contract, the one that currently receives health care (as added by Public Law 104–191, 42 signature must meet the standard transactions from health care providers U.S.C. 300gg-91); we would incorporate established in the regulation at or other entities, translates the data from those definitions as currently stated into § 142.310. Use of this standard would a given format into one acceptable to the our proposed definitions for the satisfy any Federal or State requirement intended recipient and forwards the convenience of the public. We note that for a signature, either electronic or on processed transaction to appropriate the term ‘‘health plan’’ is also defined paper. payers and clearinghouses, as necessary, in other statutes, such as the Employee We note that the ANSI X12N for further action. Retirement Income Security Act of 1974 standards for individual transactions There are currently a number of (ERISA). Our definitions are based on which have been proposed for adoption private clearinghouses that perform this the roles of plans in conducting as national standards in a separate function for health care providers. For administrative transactions, and any proposed rule do not require the use of purposes of this rule, we would differences should not be construed to electronic signatures. Standards for consider billing services, repricing affect other statutes. additional transactions that the companies, community health For purposes of implementing the Secretary may propose for adoption in management information systems or provisions of administrative the future, including one for claims community health information systems, simplification, a ‘‘health plan’’ would be attachments, may contain such value-added networks, and switches an individual or group health plan that requirements. We solicit comments on that perform this function to be health provides, or pays the cost of, medical whether electronic signatures should be care clearinghouses. care. This definition includes, but is not required for any specific transactions or limited to, the 13 types of plans listed under specific circumstances and what 3. Health Care Provider in the statute. On the other hand, plans effect such requirements would have on As defined by section 1171(3) of the such as property and casualty insurance electronic health care transactions. Act, a ‘‘health care provider’’ is a plans and workers compensation plans, We also note that the NCVHS is provider of services as defined in which may pay health care costs in the required by HIPAA to report to the section 1861(u) of the Act, a provider of course of administering nonhealth care Secretary recommendations and medical or other health services as benefits, are not considered to be health legislative proposals for uniform data defined in section 1861(s) of the Act, plans in the proposed definition of standards for patient medical record and any other person who furnishes health plan. Of course, these plans may information and the electronic exchange health care services or supplies. Our voluntarily adopt these standards for of such information, with the regulations would define ‘‘health care their own business needs. At some Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43247 future time, the Congress may choose to provider organizations, provider k. The Civilian Health and Medical expressly include some or all of these sponsored organizations, independent Program of the Uniformed Services plans in the list of health plans that practice associations, competitive (CHAMPUS), as defined in 10 U.S.C. must comply with the standards. medical plans, exclusive provider 1072(4). Health plans often carry out their organizations, and foundations for CHAMPUS primarily covers services business functions through agents, such medical care. furnished by civilian medical providers as plan administrators (including third d. Part A or Part B of the Medicare to dependents of active duty members of party administrators), entities that are program (title XVIII of the Act). the uniformed services and retirees and under ‘‘administrative services only’’ e. The Medicaid program (title XIX of their dependents under age 65. (ASO) contracts, claims processors, and the Act). fiscal agents. These agents may or may f. A ‘‘Medicare supplemental policy’’ l. The Indian Health Service program not be health plans in their own right; as defined under section 1882(g)(1) of under the Indian Health Care for example, a health plan acting as the Act. Improvement Act (25 U.S.C. 1601 et seq.). another health plan’s agent as another Section 1882(g)(1) of the Act defines line of business. As stated earlier, a a ‘‘Medicare supplemental policy’’ as a This program furnishes services, health plan that conducts HIPAA health insurance policy that a private generally through its own health care transactions through an agent is entity offers a Medicare beneficiary to providers, primarily to persons who are required to assure that the agent meets provide payment for expenses incurred eligible to receive services because they all HIPAA requirements that apply to for services and items that are not are of American Indian or Alaskan the plan itself. reimbursed by Medicare because of Native descent. ‘‘Health plan’’ includes the following, deductible, coinsurance, or other m. The Federal Employees Health singly or in combination: limitations under Medicare. The a. ‘‘Group health plan’’ (as currently Benefits Program under 5 U.S.C. chapter statutory definition of a Medicare defined by section 2791(a) of the Public 89. supplemental policy excludes a number Health Service Act). A group health This program consists of health of plans that are generally considered to plan is a plan that has 50 or more insurance plans offered to active and be Medicare supplemental plans, such participants (as the term ‘‘participant’’ is retired Federal employees and their as health plans for employees and currently defined by section 3(7) of dependents. Depending on the health former employees and for members and ERISA) or is administered by an entity plan, the services may be furnished on former members of trade associations other than the employer that established a fee-for-service basis or through a and unions. A number of these health and maintains the plan. This definition health maintenance organization. plans may be included under the includes both insured and self-insured definitions of ‘‘group health plan’’ or (Note: Although section 1171(5)(M) of the plans. We define ‘‘participant’’ ‘‘health insurance issuer’’, as defined in Act refers to the ‘‘Federal Employees Health separately below. paragraphs a. and b. above. Benefit Plan,’’ this and any other rules Section 2791(a)(1) of the Public adopting administrative simplification Health Service Act defines ‘‘group g. A ‘‘long-term care policy,’’ including a nursing home fixed- standards will use the correct name, the health plan’’ as an employee welfare Federal Employees Health Benefits Program. benefit plan (as defined in current indemnity policy. A ‘‘long-term care policy’’ is considered to be a health plan One health plan does not cover all Federal section 3(1) of ERISA) to the extent that employees; there are over 350 health plans regardless of how comprehensive it is. the plan provides medical care, that provide health benefits coverage to including items and services paid for as We recognize the long-term care Federal employees, retirees, and their eligible medical care, to employees or their insurance segment of the industry is family members. Therefore, we will use the dependents directly or through largely unautomated and we welcome correct name, the Federal Employees Health insurance, or otherwise. comments regarding the impact of Benefits Program, to make clear that the b. ‘‘Health insurance issuer’’ (as HIPAA on the long-term care segment. administrative simplification standards apply currently defined by section 2791(b) of h. An employee welfare benefit plan to all health plans that participate in the the Public Health Service Act). or any other arrangement that is Program.) Section 2791(b) of the Public Health established or maintained for the n. Any other individual or group Service Act currently defines a ‘‘health purpose of offering or providing health health plan, or combination thereof, that insurance issuer’’ as an insurance benefits to the employees of two or more provides or pays for the cost of medical company, insurance service, or employers. This includes plans that are care. insurance organization that is licensed referred to as multiple employer welfare to engage in the business of insurance arrangements (‘‘MEWAs’’). We would include a fourteenth in a State and is subject to State law that i. The health care program for active category of health plan in addition to regulates insurance. military personnel under title 10 of the those specifically named in HIPAA, as c. ‘‘Health maintenance organization’’ United States Code. there are health plans that do not (as currently defined by section 2791(b) j. The veterans health care program readily fit into the other categories but of the Public Health Service Act). under chapter 17 of title 38 of the whose major purpose is providing Section 2791(b) of the Public Health United States Code. health benefits. The Secretary would Service Act currently defines a ‘‘health This health plan primarily furnishes determine which of these plans are maintenance organization’’ as a medical care through hospitals and health plans for purposes of title II of Federally qualified health maintenance clinics administered by the Department HIPAA. This category would include organization, an organization recognized of Veterans Affairs for veterans with a the Medicare Plus Choice plans that will as such under State law, or a similar service-connected disability that is become available as a result of section organization regulated for solvency compensable. Veterans with nonservice- 1855 of the Act as amended by section under State law in the same manner and connected disabilities (and no other 4001 of the Balanced Budget Act of 1997 to the same extent as such a health health benefit plan) may receive health (Public Law 105–33) to the extent that maintenance organization. These care under this health plan to the extent these health plans do not fall under any organizations may include preferred resources and facilities are available. other category. 43248 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

6. Small Health Plan determined appropriate by the Secretary e. Enrollment and disenrollment in a We would define a ‘‘small health in accordance with section 1173(a)(1)(B) health plan. This transaction may be plan’’ as a group health plan with fewer of the Act. We present them below in used to establish communication than 50 participants. the order in which we propose to list between the sponsor of a health benefit The HIPAA does not define a ‘‘small them in the regulations text. and the payer. It provides enrollment health plan’’ but instead leaves the A ‘‘transaction’’ would mean any of data, such as subscriber and definition to be determined by the the following: dependents, employer information, and Secretary. The Conference Report a. Health claims or equivalent primary care health care provider suggests that the appropriate definition encounter information. This transaction information. A sponsor is the backer of of a ‘‘small health plan’’ is found in may be used to submit health care claim the coverage, benefit, or product. A current section 2791(a) of the Public billing information, encounter sponsor can be an employer, union, information, or both, from health care Health Service Act, which is a group government agency, association, or providers to payers, either directly or health plan with fewer than 50 insurance company. The health plan via intermediary billers and claims participants. We would also define refers to an entity that pays claims, clearinghouses. administers the insurance product or small individual health plans as those b. Health care payment and with fewer than 50 participants. benefit, or both. remittance advice. This transaction may f. Eligibility for a health plan. This 7. Individually Identifiable Health be used by a health plan to make a transaction may be used to inquire Information payment to a financial institution for a about the eligibility, coverage, or Section 1171(6) states the term health care provider (sending payment benefits associated with a benefit plan, ‘‘individually identifiable health only), to send an explanation of benefits employer, plan sponsor, subscriber, or a information’’ means any information, remittance advice directly to a health dependent under the subscriber’s including demographic information care provider (sending data only), or to policy. It also can be used to collected from an individual, that— make payment and send an explanation communicate information about or a. Is created or received by a health of benefits remittance advice to a health changes to eligibility, coverage, or care provider, health plan, employer, or care provider via a financial institution benefits from information sources (such health care clearinghouse; and (sending both payment and data). as insurers, sponsors, and payers) to b. Relates to the past, present or future c. Coordination of benefits. This information receivers (such as physical or mental health or condition transaction set can be used to transmit physicians, hospitals, third party of an individual, the provision of health health care claims and billing payment administrators, and government care to an individual, or the past, information between payers with agencies). present, or future payment for the different payment responsibilities where g. Health plan premium payments. provision of health care to an coordination of benefits is required or This transaction may be used by, for between payers and regulatory agencies individual, and example, employers, employees, unions, (i) Identifies the individual, or to monitor the furnishing, billing, and/ and associations to make and keep track (ii) With respect to which there is a or payment of health care services of payments of health plan premiums to reasonable basis to believe that the within a specific health care/insurance their health insurers. This transaction information can be used to identify the industry segment. may also be used by a health care individual. In addition to the nine electronic provider, acting as liaison for the transactions specified in section beneficiary, to make payment to a health 8. Standard 1173(a)(2) of the Act, section 1173(f) insurer for coinsurance, copayments, Section 1171 of the Act defines directs the Secretary to adopt standards and deductibles. ‘‘standard,’’ when used with reference for transferring standard data elements h. Referral certification and to a data element of health information among health plans for coordination of authorization. This transaction may be or a transaction referred to in section benefits. This particular provision does used to transmit health care service 1173(a)(1) of the Act, as any such data not state that these should be standards referral information between health care element or transaction that meets each for electronic transfer of standard data providers, health care providers of the standards and implementation elements among health plans. However, furnishing services, and payers. It can specifications adopted or established by we believe that the Congress, when also be used to obtain authorization for the Secretary with respect to the data writing this provision, intended for certain health care services from a element or transaction under sections these standards to be an electronic form health plan. 1172 through 1174 of the Act. of transactions for coordination of i. First report of injury. This Under our definition, the security benefits and sequential processing of transaction may be used to report standard would be a set of requirements claims. The Congress expressed its information pertaining to an injury, adopted or established to preserve and intent on these matters generally in illness, or incident to entities interested maintain the confidentiality and privacy section 1173(a)(1)(B) of the Act, where in the information for statistical, legal, of electronically stored, maintained, or the Secretary is directed to adopt ‘‘other claims, and risk management processing transmitted health information financial and administrative requirements. promulgated either by an organization transactions * * * consistent with the j. Health claims attachments. This accredited by the ANSI or HHS. goals of improving the operation of the transaction may be used to transmit health care system and reducing health care service information, such as 9. Transaction administrative costs.’’ subscriber, patient, demographic, ‘‘Transaction’’ would mean the d. Health claim status. This diagnosis, or treatment data for the exchange of information between two transaction may be used by health care purpose of a request for review, parties to carry out financial and providers and recipients of health care certification, notification, or reporting administrative activities related to products or services (or their authorized the outcome of a health care services health care. A transaction would be (a) agents) to request the status of a health review. any of the transactions listed in section care claim or encounter from a health k. Other transactions as the Secretary 1173(a)(2) of the Act, and (b) any plan. may prescribe by regulation. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43249

Under section 1173(a)(1)(B) of the standard earlier than the date specified information security and Act, the Secretary may adopt standards, in the subpart created for that standard. confidentiality, and specifically, no and data elements for those standards, We realize that this may create some single SDO is developing standards that and for other financial and problems temporarily, as early cover every category of the security administrative transactions deemed implementers would have to be able to framework.’’ [Page 189] appropriate by the Secretary. These continue using old standards until the • The standard must be technology- transactions would be consistent with new one must, by law, be in place. neutral. Our proposed standard does not the goals of improving the operation of D. Security Standard the health care system and reducing reference or advocate specific administrative costs. [Please label written comments or e-mailed technology because security technology comments about this section with the subject: is changing quickly. We want to give C. Effective Dates—General Security Standard—General] providers/plans/clearinghouses [Please label written comments or e-mailed Section 142.308 would set forth the flexibility to choose their own technical comments about this section with the subject: security standard. There is no solutions. A standard that is dependent effective dates] recognized single standard that on a specific technology or technologies In general, any given standard would integrates all the components of security would not be flexible enough to use be effective 24 months after the effective (administrative procedures, physical future advances. • The standard must be scalable. date (36 months for small health plans) safeguards, technical security services, and technical mechanisms) that must be The standard must be able to be of the final rule for that standard. implemented by all the affected entities, Because there are other standards to be in place to preserve health information confidentiality and privacy as defined from the smallest provider to the largest established than those in this proposed clearinghouse. A single approach would rule, we specify the date for a given in the law. Therefore, we are designating a new, comprehensive be neither economically feasible nor standard under the subpart for that effective in safeguarding health data. standard. standard, which defines the security requirements to be fulfilled. For example, in a small physician Health plans would be required by practice, a contingency plan for system part 142 to comply with our In fact, there are numerous security guidelines and standards in existence emergencies might be only a few pages requirements as follows: long, and cover issues such as where 1. Each health plan that is not a small today, focusing on the different techniques available for implementing backup diskettes must be stored, and the plan would have to comply with the location of a backup personal computer requirements of part 142 no later than the various aspects of security. We thoroughly researched the existing (PC). At a large health plan, the 24 months after the effective date of the contingency plan might consist of final rule. guidelines and standards, and consulted extensively with the organizations that multiple volumes and cover issues such 2. Each small health plan would have as remote hot site operations and secure to comply with the requirements of part developed them. A list of the organizations with which we consulted off-site storage of electronic media. The 142 no later than 36 months after the physician office solution would not effective date of the final rule. can be found in section G. below. As a result of these consultations and our protect the large plan’s data, and the Health care providers and health care plan’s solution would not be clearinghouses would be required to research, we identified several high- level concepts on which the standard is economically feasible (or necessary) for begin using the standard by 24 months the physician office. Moreover, the after the effective date of the final rule. based: • The standard must be statute specifically directed the (The effective date of the final rule will comprehensive. Secretary to take into account the needs be 60 days after the final rule is • Consultation with standards and capabilities of small and rural published in the Federal Register.) development organizations, such as health care providers, as those terms are Provisions of trading partner ANSI-accredited organizations, as well defined by the Secretary. The scalability agreements that stipulate data content, as business interest organizations, of our approach addresses this format definitions, or conditions that revealed the need for a standard that direction. We are not proposing specific conflict with the adopted standard addressed all aspects of security in a definitions of ‘‘small’’ and ‘‘rural’’ would be invalid beginning 36 months concerted fashion. The HISB noted in its health care providers because the statute from the effective date of the final rule report to the Secretary that: provides no exemptions or special for small health plans, and 24 months ‘‘Comprehensive adoption of security benefits for these two groups. However, from the effective date of the final rule standards in health care, not piecemeal we solicit comments on the necessity to for all other health plans. implementation, is advocated to provide define these terms. If the HHS adopts a modification to an security to data that is exchanged General Approach implementation specification or a between health care entities. standard, the implementation date of By definition, if a system or We would define the security the modification would be no earlier communications between two systems, standard as a set of requirements with than the 180th day following the were implemented with technology(s) implementation features that providers, adoption of the modification. HHS meeting standards in a general system plans, and clearinghouses must include would determine the actual date, taking security framework (Identification and in their operations to assure that into account the time needed to comply Authentication; Authorization and electronic health information pertaining due to the nature and extent of the Access Control; Accountability; to an individual remains secure. The modification. HHS would be able to Integrity and Availability; Security of implementation features address extend the time for compliance for small Communication; and Security specific aspects of the requirements. health plans. This provision would be at Administration.) that system would be The standard does not reference or § 142.106. essentially secure. advocate specific technology. This Any of the health plans, health care *** no single standards would allow the security standard to be clearinghouses, and health care development organization (SDO) is stable, yet flexible enough to take providers may implement a given addressing all aspects of health care advantage of state-of-the-art technology. 43250 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

The standard does not address the to safeguard the integrity, business organizations; individuals extent to which a particular entity confidentiality, and availability of its knowledgeable in security; and should implement the specific features. electronic data. It also describes the educational institutions have been Instead, we would require that each implementation features that must be encouraged to express their views. affected entity assess its own security present in order to satisfy each As a result of the collaborative needs and risks and devise, implement, requirement. The proposed security regulation development and maintain appropriate security to requirements and implementation process, the implementation team has address its business requirements. How features were developed by the chosen to divide the proposed security individual security requirements would implementation team based on requirements, for purposes of be satisfied and which technology to use knowledge of security procedures and presentation only, into the following would be business decisions that each existing standards and guidelines four categories: • organization would have to make. described above. This was an iterative Administrative procedures to guard The recommendations contained in process that involved extensive data integrity, confidentiality, and the National Research Council’s 1997 outreach with a number of health care availability—these are documented, report For The Record: Protecting industry and Department of Commerce formal practices to manage the selection Electronic Health Information support security experts. We also drew upon and execution of security measures to our approach to the development of a Recommendations 1 and 3 in the protect data and the conduct of security standard. This report presents National Research Council’s 1997 personnel in relation to the protection of findings and recommendations related data. report, For The Record, that were • to health data security, and is widely recommended for immediate Physical safeguards to guard data viewed as an authoritative and implementation. integrity, confidentiality, and comprehensive source on the subject. ‘‘Recommendation 1: All availability—these relate to the The report concludes that appropriate organizations that handle patient- protection of physical computer systems security practices are highly dependent identifiable health care information— and related buildings and equipment on individual circumstances, but goes regardless of size—should adopt the set from fire and other natural and on to suggest that: of technical and organizational policies, environmental hazards, as well as from practices, and procedures described intrusion. Physical safeguards also cover ‘‘It is therefore not possible to prescribe in the use of locks, keys, and detail specific practices for all organizations; below to protect such information.’’ rather, each organization must analyze its The proposed security standard administrative measures used to control systems, vulnerabilities, risks, and resources addresses the following policies, access to computer systems and to determine optimal security measures. facilities. practices, and procedures that were • Nevertheless, the committee believes that a listed under Recommendation 1: Technical security services to guard set of practices can be articulated in a • data integrity, confidentiality, and sufficiently general way that they can be Organizational Practices availability—these include the adopted by all health care organizations in 1. Security and confidentiality processes that are put in place to protect one form or another.’’ (Page 168) policies and to control and monitor information The specific requirements and 2. Information security officers access, and supporting implementation features 3. Education and training programs, • Technical security mechanisms— detailed in the next section represent and these include the processes that are put 4. Sanctions this general set of practices. Many • in place to prevent unauthorized access health care entities have already Technical Practices and Procedures to data that is transmitted over a 1. Individual authentication of users implemented some or all of these communications network. 2. Access controls practices. We believe they represent It should be noted that the only 3. Audit trails those practices that are necessary in necessity is that the requirements would 4. Physical security and disaster order to conduct business electronically be met, not that they be presented in recovery in the health care industry today and, these four categories. Under this 5. Protection of remote access points therefore, are normal business costs. proposed rule, a business entity could Inherent in this approach is a balance 6. Protection of external electronic choose to order the requirements in any between the need to secure health data communications manner that suits its business. against risk and the economic cost of 7. Software discipline, and We then determined the requirements doing so. Health care entities must 8. System assessment and implementation features that health consider both aspects in devising their ‘‘Recommendation 3: The federal plans, providers, and clearinghouses security solutions. government should work with industry would implement. The implementation to promote and encourage an informed features describe the requirements in Specific Requirements public debate to determine an greater detail. Some requirements do not The proposed standard requires that appropriate balance between the require this additional level of detail. each health care entity engaged in primary concerns of patients and the Within the four categories, the electronic maintenance or transmission information needs of various users of requirements and implementation of health information assess potential health care information.’’ features are presented in alphabetical risks and vulnerabilities to the This proposed security standard was order to ensure that no one item is individual health data in its possession developed in the spirit of considered to be more important than in electronic form, and develop, Recommendation 3. The security another. The relative importance of the implement, and maintain appropriate standard development process has been requirements and implementation security measures. Most importantly, an open one with invitations to a features would depend on the these measures must be documented number of organizations to participate characteristics of each organization. and kept current. in the security discussions. Although The four categories of the matrix are The proposed security standard implementation team membership was described in greater detail in § 142.308 consists of the requirements that a limited to government employees, and are depicted in tabular form along health care entity must address in order nongovernmental organizations; with the electronic signature standard in Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43251 a combined matrix located at glossary can be found at Addendum 2. require each to be documented. We Addendum 1. We have not included the Finally, we have included currently would require the documentation to be matrix in the proposed regulation text. existing standards and guidelines made available to those individuals We invite your comments concerning mapped to the proposed security responsible for implementing the the appropriateness and usefulness of standard. This mapping is not all procedures and would require it to be including the matrix in the final inclusive and is located at Addendum 3. reviewed and updated periodically. The regulation text. We also solicit 1. Administrative Procedures following matrix depicts the comments as to the level of detail requirements and supporting expressed in requirement [Please label written comments or e-mailed comments about this section with the subject: implementation features for the implementation features; i.e., do any Administrative Procedures category. represent a level of detail that goes administrative procedures] Following the matrix is a discussion of beyond what is necessary or In this proposed rule, the each of the requirements under that appropriate. We have also provided a administrative requirements and glossary of terms to facilitate a common supporting implementation features are category. understanding of the matrix entries. The presented at § 142.308(a). We would

ADMINISTRATIVE PROCEDURES TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITY

Requirement Implementation

Certification Chain of trust partner agreement Contingency plan (all listed implementation features must be imple- Applications and data criticality analysis. mented). Data backup plan. Disaster recovery plan. Emergency mode operation plan. Testing and revision. Formal mechanism for processing records Information access control (all listed implementation features must be Access authorization. implemented). Access establishment. Access modification. Internal audit Personnel security (all listed implementation features must be imple- Assure supervision of maintenance personnel by authorized, knowl- mented). edgeable person. Maintenance of record of access authorizations. Operating, and in some cases, maintenance personnel have proper ac- cess authorization. Personnel clearance procedure. Personnel security policy/procedure. System users, including maintenance personnel, trained in security. Security configuration mgmt. (all listed implementation features must be Documentation. implemented). Hardware/software installation & maintenance review and testing for security features. Inventory. Security Testing. Virus checking. Security incident procedures (all listed implementation features must be Report procedures. implemented). Response procedures. Security management process (all listed implementation features must Risk analysis. be implemented). Risk management. Sanction policy. Security policy. Termination procedures (all listed implementation features must be im- Combination locks changed. plemented). Removal from access lists. Removal of user account(s). Turn in keys, token or cards that allow access. Training (all listed implementation features must be implemented) ...... Awareness training for all personnel (including mgmt) Periodic security reminders. User education concerning virus protection. User education in importance of monitoring log in success/failure, and how to report discrepancies. User education in password management

a. Certification. Each organization We are, at this time, soliciting input of documentary evidence of steps taken would be required to evaluate its on appropriate mechanisms to permit for compliance; need for, or desirability computer system(s) or network design(s) independent assessment of compliance. of, independent verification, validation, to certify that the appropriate security We would be particularly interested in and testing of system changes; and has been implemented. This evaluation input from those engaging in health care certifications required for off-the-shelf could be performed internally or by an electronic data interchange (EDI), as products used to meet the requirements external accrediting agency. well as independent certification and of this regulation. auditing organizations addressing issues 43252 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

We also solicit comments on the • Access establishment policies and accurate and current security incident extent to which obtaining external procedures. procedures. These are formal, certification would create an undue • Access modification policies and documented instructions for reporting burden on small or rural providers. procedures. security breaches, so that security b. Chain of Trust Partner Agreement. Access control is also discussed later violations are reported and handled If data are processed through a third in this document in the personnel promptly. These instructions would party, the parties would be required to security requirement and under the include the following: enter into a chain of trust partner physical safeguards, technical security • Report procedures. agreement. This is a contract in which services, and technical security • Response procedures. the parties agree to electronically mechanisms categories. j. Security Management Process. A exchange data and to protect the f. Internal Audit. There would be a process for security management would transmitted data. The sender and requirement for an ongoing internal be required. This involves creating, receiver are required and depend upon audit process, which is the in-house administering, and overseeing policies each other to maintain the integrity and review of the records of system activity to ensure the prevention, detection, confidentiality of the transmitted (for example, logins, file accesses, containment, and correction of security information. Multiple two-party security incidents) maintained by an breaches. We would require the contracts may be involved in moving entity. This is important to enable the organization to have a formal security information from the originating party organization to identify potential management process in place to address to the ultimate receiving party. For security violations. the full range of security issues. Security example, a provider may contract with g. Personnel Security. There would be management includes the following a clearinghouse to transmit claims to the a requirement that all personnel with mandatory implementation features: clearinghouse; the clearinghouse, in access to health information must be • Risk analysis. turn, may contract with another authorized to do so after receiving • Risk management. clearinghouse or with a payer for the appropriate clearances. This is • A sanction policy. • further transmittal of those claims. important to prevent unnecessary or A security policy. These agreements are important so that inadvertent access to secure k. Termination Procedures. There the same level of security will be information. The personnel security would be a requirement to implement maintained at all links in the chain requirement would require entities to termination procedures, which are when information moves from one meet the following conditions: formal, documented instructions, organization to another. • Assure supervision of personnel including appropriate security c. Contingency Plan. We would performing technical systems measures, for the ending of an require a contingency plan to be in maintenance activities by authorized, employee’s employment or an internal/ effect for responding to system knowledgeable persons. external user’s access. These procedures emergencies. The organization would be • Maintain access authorization are important to prevent the possibility required to perform periodic backups of records. of unauthorized access to secure data by data, have available critical facilities for • Insure that operating, and in some those who are no longer authorized to continuing operations in the event of an cases, maintenance personnel have access the data. Termination procedures emergency, and have disaster recovery proper access. would include the following mandatory • procedures in place. To satisfy the Employ personnel clearance implementation features: • requirement, the plan would include the procedures Changing combination locks. • Employ personnel security policy/ • Removal from access lists. following: • • Applications and data criticality procedures. Removal of user account(s). • • analysis, Ensure that system users, including Turn in of keys, tokens, or cards • A data backup plan, technical maintenance personnel are that allow access. • A disaster recovery plan, trained in system security. 1. Training. This proposed rule would • An emergency mode operation h. Security Configuration require security training for all staff plan, and Management. The organization would regarding the vulnerabilities of the • Testing and revision procedures. be required to implement measures, health information in an entity’s d. Formal Mechanism for Processing practices, and procedures for the possession and procedures which must Records There would be a formal security of information systems. These be followed to ensure the protection of mechanism for processing records, that would be coordinated and integrated that information. This is important is, documented policies and procedures with other system configuration because employees need to understand for the routine and nonroutine receipt, management practices in order to create their security responsibilities and make manipulation, storage, dissemination, and manage system integrity. This security a part of their day-to-day transmission, and/or disposal of health integration process is important to activities. The implementation features information. This is important to limit ensure that routine changes to system that would be required to be the inadvertent loss or disclosure of hardware and/or software do not incorporated follow: secure information because of process contribute to or create security • Awareness training for all issues. weaknesses. This requirement would personnel, including management, (this e. Information Access Control. An include the following: is also included as a requirement under entity would be required to establish • Documentation. physical safeguards). and maintain formal, documented • Hardware/software installation and • Periodic security reminders. policies and procedures for granting maintenance review and testing for • User education concerning virus different levels of access to health care security features. protection. information. To satisfy this requirement, • Inventory procedures. • User education in importance of the following features would be • Security testing. monitoring login success/failure, and provided: • Virus checking. how to report discrepancies. • Access authorization policies and i. Security Incident Procedures. There • User education in password procedures. would be a requirement to implement management. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43253

2. Physical Safeguards To Guard Data The requirements and implementing the safeguards and to be Integrity, Confidentiality, and implementation features for physical reviewed and updated periodically. The Availability safeguards are presented at § 142.308(b) following matrix depicts the of this proposed rule. We would require requirements and implementation [Please label written comments or e-mailed each of these safeguards to be features for the Physical Safeguards comments about this section with the subject: documented. We would require this category. Following the matrix is a Physical Safeguards] documentation to be made available to discussion of each of the requirements those individuals responsible for under that category.

PHYSICAL SAFEGUARDS TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITY

Requirement Implementation

Assigned security responsibility Media controls (all listed implementation features must be imple- Access control. mented). Accountability (tracking mechanism). Data backup. Data storage. Disposal. Physical access controls (limited access) (all listed implementation fea- Disaster recovery. tures must be implemented). Emergency mode operation. Equipment control (into and out of site). Facility security plan. Procedures for verifying access authorizations prior to physical access. Maintenance records. Need-to-know procedures for personnel access. Sign-in for visitors and escort, if appropriate. Testing and revision. Policy/guideline on work station use Secure work station location Security awareness training.

a. Assigned Security Responsibility. of health information by preventing unauthorized access to information. We would require the security unauthorized physical access to This would be important especially in responsibility to be assigned to a information and ensuring that public buildings, provider locations, specific individual or organization, and authorized personnel have proper and in areas where there is heavy the assignment be documented. These access. These controls would include pedestrian traffic. responsibilities would include the the following mandatory f. Security Awareness Training. management and supervision of (1) the implementation features: Security awareness training would be • Disaster recovery. use of security measures to protect data, required for all employees, agents, and and (2) the conduct of personnel in • Emergency mode operation. contractors. This would be important relation to the protection of data. This • Equipment control (into and out of because employees would need to assignment is important to provide an site). understand their security organizational focus and importance to • A facility security plan. • responsibilities based on their job security and to pinpoint responsibility. Procedures for verifying access b. Media Controls. Media controls authorizations prior to physical access. responsibilities in the organization and • Maintenance records. make security a part of their daily would be required in the form of formal, • documented policies and procedures Need-to-know procedures for activities. personnel access. that govern the receipt and removal of • 3. Technical Security Services To Guard hardware/software (for example, Sign-in for visitors and escort, if appropriate. Data Integrity, Confidentiality, and diskettes, tapes) into and out of a • Availability facility. They are important to ensure Testing and revision. d. Policy/Guideline on Workstation total control of media containing health [Please label written comments or e-mailed Use. Each organization would be information. These controls would comments about this section with the subject: required to have a policy/guideline on include the following mandatory Technical Security Services] workstation use. These documented implementation features: • Controlled access to media. instructions/procedures would The proposed requirements and • Accountability (tracking delineate the proper functions to be implementation features for technical mechanism). performed and the manner in which security services are presented at • Data backup. those functions are to be performed (for § 142.308(c). We would require each of • Data storage. example, logging off before leaving a these services to be implemented and • Disposal. terminal unattended). This would be documented. The documentation would c. Physical Access Controls. Physical important so that employees will be made available to those individuals access controls (limited access) would understand the manner in which responsible for implementing the be required. These would be formal, workstations must be used to maximize services and would be reviewed and documented policies and procedures for the security of health information. updated periodically. The following limiting physical access to an entity e. Secure Workstation Location. Each matrix depicts the requirements and while ensuring that properly authorized organization would be required to put in implementation features for the access is allowed. These controls would place physical safeguards to eliminate Technical Security Services category. be extremely important to the security or minimize the possibility of Following the matrix is a discussion of 43254 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules each of the requirements under that category.

TECHNICAL SECURITY SERVICES TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITY

Requirement Implementation

Access control (The following implementation feature must be imple- Context-based access. mented: Procedure for emergency access. In addition, at least one of Encryption. the following three implementation features must be implemented: Procedure for emergency access. Context-based access, Role-based access, User-based access. The Role-based access. use of Encryption is optional). User-based access. Audit controls Authorization control (At least one of the listed implementation features Role-based access. must be implemented). User-based access. Data Authentication Entity authentication (The following implementation features must be Automatic logoff. implemented: Automatic logoff, Unique user identification. In addition, Biometric. at least one of the other listed implementation features must be im- Password. plemented). PIN. Telephone callback. Token. Unique user identification.

a. Access Control. There would be a use and disclosure of health • A password system. requirement for access control which information. These controls would be • A personal identification number would restrict access to resources and necessary to ensure that health (PIN). allow access only by privileged entities. information is used only by properly • It would be important to limit access to authorized individuals. Either of the Telephone callback. health information to those employees following implementation features may • A token system which uses a who have a business need to access it. be used: physical device for user identification. Types of access control include, among • Role-based access. others, mandatory access control, • User-based access (see access 4. Technical Security Mechanisms To discretionary access control, time-of- control, above.). Guard Against Unauthorized Access to day, classification, and subject-object d. Data Authentication. Each Data That Is Transmitted Over a separation. The following organization would be required to be Communications Network implementation feature would be used: able to provide corroboration that data [Please label written comments or e-mailed • Procedure for emergency access. in its possession has not been altered or comments about this section with the subject: In addition, at least one of the destroyed in an unauthorized manner. Technical Security Mechanisms] following three implementation features Examples of how data corroboration would be used: may be assured include the use of a In this proposed rule, the • Context-based access. check sum, double keying, a message requirements and implementation • Role-based access. authentication code, or digital signature. features for technical security • User-based access. e. Entity Authentication. Each mechanisms are presented at The use of the encryption organization would be required to § 142.308(d). Each of these mechanisms implementation feature would be implement entity authentication, which would need to be documented. The optional. is the corroboration that an entity is documentation would be made available b. Audit Controls. Each organization who it claims to be. Authentication to those individuals responsible for would be required to put in place audit would be important to prevent the implementing the mechanisms and control mechanisms to record and improper identification of an entity who would be reviewed and updated examine system activity. They would be is accessing secure data. The following periodically. The following matrix important so that the organization can implementation features would be used: depicts the requirement and identify suspect data access activities, • Automatic log off. implementation features for the assess its security program, and respond • Unique user identification. Technical Security Mechanisms to potential weaknesses. In addition, at least one of the category. Following the matrix is a c. Authorization Control. There would following implementation features discussion of the requirement under be a requirement to put in place a would be used: that category. mechanism for obtaining consent for the • A biometric identification system. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43255

TECHNICAL SECURITY MECHANISMS TO GUARD AGAINST UNAUTHORIZED ACCESS TO DATA THAT IS TRANSMITTED OVER A COMMUNICATIONS NETWORK

Requirement Implementation

Communications/network controls (If communications or networking is Access controls. employed, the following implementation features must be imple- Alarm. mented: Integrity controls, Message authentication. In addition, one Audit trail. of the following implementation features must be implemented: Ac- Encryption. cess controls, Encryption. In addition, if using a network, the follow- Entity authentication. ing four implementation features must be implemented: Alarm, Audit Event reporting. trail, Entity authentication, Event reporting). Integrity controls. Message authentication.

Each organization that uses one to four physician office, with two to individual on the office staff should be communications or networks would be five additional employees. The office charged with the responsibility for required to protect communications uses a PC-based practice management assuring the Personnel Security containing health information that are system, which is used to communicate requirement is met. This responsibility transmitted electronically over open intermittently with a clearinghouse for would include seeing that the access networks so that they cannot be easily submission of electronic claims. The authorization levels granted are intercepted and interpreted by parties number of providers is of less documented and kept current (for other than the intended recipient, and to importance for this example than the example, records are kept of everyone protect their information systems from relatively simple technology in use and who is permitted to use the PC and what intruders trying to access systems the fact that there is insufficient volume files they may access), and training all through external communication points. or revenue to justify employment of a personnel in security. Again, we When using open networks, some form computer system administrator.) We emphasize that these requirements are of encryption should be employed. The want to emphasize that there are scalable. The requirement for Personnel utilization of less open systems/ numerous ways in which an entity Clearance Procedures could be met in a networks such as those provided by a could implement these requirements small office with standard personal and value-added network (VAN) or private- and features. This example does not professional reference checks, while a wire arrangement provides sufficient necessarily represent the best way or the large organization may employ more access controls to allow encryption to be only way in which an entity could formal, rigorous background an optional feature. These controls choose to implement security. investigations. would be important because of the We anticipate that the small or rural This same individual could also be potential for compromise of information provider office, as described above, charged with the responsibility for over open systems such as the Internet would normally evaluate and self-certify Security Configuration Management and or dial-in lines. that the appropriate security is in place Termination Procedures. For our small The following implementation for its computer system and office provider, the Security Configuration features would be in place: procedures. This evaluation could be Management requirement would be • Integrity controls. done by a knowledgeable person on the relatively easy to satisfy; the necessary • Message authentication. staff, or more likely, by a consultant or features could be part of a purchased One of the following implementation by the vendor of the practice hardware/software package (for features would be in place: management system as a service to its example, a new PC might be equipped • Access controls. customers. First, the office might assess with virus checking software), or • Encryption. actual and potential risks to its included as part of the support supplied In addition, if using a network for information assets. Then, to establish with the purchase of equipment and communications, the following appropriate security, the office would software. Termination procedures implementation features would be in develop policies and procedures to would incorporate specific security place: mitigate and manage those risks. These actions to be taken as a result of an • Alarm. would include an overall framework employee’s termination, such as • Audit trail. outlining information security activities obtaining all keys and changing • Entity authentication. and responsibilities, and repercussions combinations or passwords. A ‘‘position • Event reporting. for failure to meet those responsibilities. description’’ document describing this Small or Rural Provider Example. The Next, this office might develop person’s duties could specify the level size and organizational structure of the contingency plans to reduce or negate of detail necessary. entities that would be required to the damage resulting from processing The small or rural provider office implement this standard vary anomalies; for example, establish a would also need to ensure that they tremendously. Therefore, it would be routine process for maintaining back up have activated the internal auditing impossible to provide examples that floppy disks at a second location, obtain capability of the software used to would cover every possible a PC maintenance contract, and arrange manage health data files so that it tracks implementation of security in the health for use of a backup PC should the need who has accessed the data. (We expect care industry. Nevertheless, we have arise. This office would need to that the capability of keeping audit trails included an example describing the periodically review its plan to will become standard in all health care manner in which a small or rural determine whether it still met the software in the near future, spurred on provider might choose to implement the office’s needs. by the health information privacy requirements of the standard. (For The office would need to create and debates in the Congress and elsewhere.) purposes of this example, we would document a personnel security policy A small or rural provider may describe a small or rural provider as a and procedures to be followed. A key document compliance with many of the 43256 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules foregoing administrative security models could be employed if desired, the documentation discussed in this requirements by including them in an but would prove unwieldy for the small example to be developed by industry ‘‘office procedures’’ type of document office. For example, the role-based associations and vendors. If this model that should be required reading by new access process groups users with similar documentation is not developed, DHHS employees and always available for data access needs, and context-based would work with the industry to reference. Requirements that would access is based upon the context of a develop them. lend themselves to inclusion in an transaction—not on the attributes of the E. Electronic Signature Standard ‘‘office procedures’’ document include: initiator. By assigning full access rights contingency plans, formal records to a minimum of two key individuals in [Please label written comments or e-mailed processing procedures, information the office, implementation of the comments about this section with the subject: access controls (rules for granting Emergency Access feature could be Electronic Signature Standard] access, actual establishment of access, satisfied. Audit control mechanisms, by HIPAA directs the Secretary of the and procedures for modifying such necessity, would be provided by Department of Health and Human access), security incident procedures software featuring that capability. By Services to coordinate with the (for example, who is to be notified if it establishing and using a message Secretary of the Department of appears that medical information has authentication code, Data Commerce in adopting standards for the been accessed by an unauthorized Authentication would be achieved. Use electronic transmission and party), and training. Periodic security of the password system mentioned authentication of signatures with reminders could include visual aids, above could also satisfy the Unique User respect to the transactions referred to in such as posters and screen savers, and Identification requirement. the law. This rule was developed in oral reminders in recurring meetings. As our example provider contracts coordination with the Department of Physical Access controls would be with a third party to handle claims Commerce’s National Institute of relatively straightforward for this small processing, the claims processing Standards and Technology. We propose or rural office, using locked rooms and/ contract would be the vehicle to provide to adopt a cryptographically based or closets to secure equipment and for a chain of trust (requiring the digital signature as the standard. media from unauthorized access. The contractor to implement the same Whenever a HIPAA specified ‘‘office procedures/policies’’ manual security requirements and take transaction requires the use of an should include directions for responsibility for protecting the data it electronic signature, the standard must authorizing access and keeping records receives). be used. It should be noted that an of authorized accesses. Media Controls If this provider chooses to use the electronic signature is not required for and Workstation Use policy instructions Internet to transmit or receive health any of the currently proposed standard would be developed by the office and information, some form of encryption transactions. would include additional instructions must be used. For example, the provider on such items as where to store backed- could procure and use commercial In the electronic environment, the up data, how to dispose of data no software to provide protection against same legal weight associated with an longer needed, or logging off when unauthorized access to the data original signature on a paper document leaving terminals unattended. transmitted or received. (This decision may be needed for electronic data. Use Safeguards for the security of must take into account what encryption of an electronic signature refers to the workstation location(s) would depend system the message recipient uses.) On act of attaching a signature by electronic upon the physical surroundings in the the other hand, health information means. The electronic signature process small or rural office. Our small or rural when transmitted via other means such involves authentication of the signer’s provider may meet the requirements by as VANs, private wires, or even dial-up identity, a signature process according locating equipment in areas that are connections may not require such to system design and software generally populated by office staff and absolute protection as is provided by instructions, binding of the signature to have some degree of physical separation encryption. This small or rural provider the document and non-alterability after from the public. Security Awareness would likely not be part of a network the signature has been affixed to the Training would be part of the new configuration, therefore, only integrity document. The generation of electronic employee orientation process and controls and message authentication signatures requires the successful would be a periodic recurring would be required and could be identification and authentication of the discussion item in staff meetings. provided by currently available software signer at the time of the signature. The Technical Security Services products, most likely provided as part of The proposed standard for electronic requirements for Access Control, Entity their contract with their health care signature is presented at § 142.310 and Authentication, and Authorization clearinghouse. would be digital. Control may be achieved simply by Small providers may need guidance The following matrix depicts the implementing a user-based data access regarding the content of the documents requirement and implementation model (assigning a user-name and required by this rule (for example, features for electronic signatures. password combination to each specifics of a chain of trust partner Following the matrix is a discussion of authorized employee). Other access agreement). We would expect models of the electronic signature requirement. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43257

ELECTRONIC SIGNATURE

Requirement Implementation

Digital signature (If digital signature is employed, the following three im- Ability to add attributes. plementation features must be implemented: Message integrity, Non- Continuity of signature capability. repudiation, User authentication. Other implementation features are Countersignatures. optional). Independent verifiability. Interoperability. Message integrity. Multiple Signatures. Nonrepudiation. Transportability. User authentication.

Various technologies may fulfill one • Interoperability. 3. Be consistent and uniform with the or more of the requirements specified in • Multiple signatures. other HIPAA standards and, secondly, the matrix. Authentication systems • Transportability. with other private and public sector (passwords, biometrics, physical feature This standard is described in greater health data standards. authentication, behavioral actions and detail in § 142.310 of the regulation text The security and electronic signature token-based authentication) can be and is depicted in tabular form along standards were developed after a combined with cryptographic with the security standard in a comprehensive review of existing techniques to form an electronic combined matrix located at Addendum standards and guidelines, with signature. However, a complete 1. We have not included the matrix in significant input by a wide range of electronic signature system may require the proposed regulation text. We invite industry experts. As indicated in more than one of the technologies your comments concerning the Addendum 3, the standards map well to mentioned above. If electronic appropriateness and usefulness of existing standards and guidelines. signatures would be used, certain including the matrix in the final 7. Be technologically independent of implementation features must be regulation text. We have also provided computer platforms and transmission included, specifically: a glossary of terms to facilitate a protocols. • We have defined the security and Message integrity. common understanding of the matrix • electronic signature standards in terms Nonrepudiation. entries. The glossary can be found at • User authentication. of requirements that would allow Addendum 2. Finally, we have included Currently there are no technically businesses in the health care industry to currently existing standards and mature techniques that provide the select the technology that best meets guidelines mapped to the proposed security service of nonrepudiation in an their business requirements while still electronic signature standard. This open network environment, in the allowing them to comply with the mapping is not all inclusive and is absence of trusted third parties, other standards. than digital signature-based techniques. located at Addendum 3. 9. Keep data collection and Therefore, if electronic signatures are F. Selection Criteria paperwork burdens on users as low as employed, we would require that digital is feasible. signature technology be used. A digital Each individual implementation team The security and electronic signature signature is formed by applying a weighted the criteria described in standards would allow individual mathematical function to the electronic section I.B. above, Process for health care industry businesses to document. This process yields a unique Developing National Standards, in terms ascertain the level of security bit string, referred to as a message of the standard it was addressing. As we information that would be needed. The digest. The digest (only) is encrypted assessed security and electronic confidentiality level associated with using the originator’s private key and signatures, it became apparent that individual data elements concerning the resulting bit stream is appended to while the security standard set forth in health care information would the electronic document. The recipient § 142.308 and the electronic signature determine the appropriate security of the transmitted document decrypts standard set forth in § 142.310 satisfy all application to be used. The security the message digest with the originator’s the criteria described above, they most standard would define the requirements public key, applies the same message strongly address criteria 1, 3, 7, 9, and to be met to achieve the privacy and hash function to the document, then 10. These criteria are described below in confidentiality goal, but each business compares the resulting digest with the the specific context of these standards. entity, driven by its business transmitted version. If they are 1. Improve the efficiency and requirements, would decide what identical, then the recipient is assured effectiveness of the health care system. techniques and controls would provide that the message is unaltered and the The security and electronic signature appropriate and adequate electronic identity of the signer is proven. Since standards would be integrated with the data protection. This would allow data only the signatory authority can hold electronic transmission of health care collection and the paperwork burden to the Private Key used to digitally sign the information to improve the overall be as low as is feasible. document, the critical feature of effectiveness of the health care system. 10. Incorporate flexibility to adapt nonrepudiation is enforced. Other This integration would assure that more easily to changes in the health care electronic signature implementation electronic health care information infrastructure and information features that may be used follow: would not be accessible to any technology. • Ability to add attributes. unauthorized person or organization, A technologically neutral security • Continuity of signature capability. but would be both accurate and standard would be more adaptable to • Countersignatures capability. available to those who are authorized to changes in infrastructure and • Independent verifiability. receive it. information technology. 43258 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

G. Consultations electronically transmitted. Federal 3. Health Care Providers In the development of the security agencies and States may place a. In § 142.306(a), we would require and electronic signature standards, we additional requirements on their health each health care provider to apply the consulted with many organizations, plans. In addition, trading partners may security standard to all health including those the legislation requires mutually agree to implement additional information pertaining to an individual (section 1172(c)(3)(B) of the Act): security measures. that is electronically maintained or 1. The NCVHS held two days of b. In § 142.310(a), entities would not electronically transmitted. public hearings on security issues in be required to use an electronic b. In § 142.310(a), entities would not August 1997, and made a signature. However, if a plan elects to be required to use an electronic recommendation to the Secretary of use an electronic signature in one of the signature. However, if a plan elects to HHS, as required by the legislation. The transactions named in the law, it would use an electronic signature in one of the NCVHS recommendation to the be required to apply the electronic transactions named in the law, it would Secretary of HHS, as required by the signature standard described in be required to apply the electronic legislation, was for a technologically § 142.310(b) to that transaction. In the signature standard described in neutral standard. It identified certain future, we anticipate that the standards § 142.310(b) to that transaction. In the criteria to be established for a health for other transactions may include future, we anticipate that the standards information system to be secure. The requirements for signatures. In for other transactions may include proposed security standard complies particular, the proposed standard for requirements for signatures. In with the NCVHS security claims attachments, which will be particular, the proposed standard for recommendation. issued in a separate regulations package claims attachments, which will be 2. The ANSI Accredited Standards later, may include signature issued in a separate regulations package Committee (ASC) X12 subcommittees requirements on some or all of the later, may include signature on communication and control, attachments. If the proposed requirements on some or all of the insurance and government were attachments standard includes such attachments. If the proposed contacted. Their current standards signature requirements, we will address attachments standard includes such development effort is focused on the issue of how to reconcile such signature requirements, we will address messaging rather than on security requirements with existing State and the issue of how to reconcile such requirements. Federal requirements for written requirements with existing State and 3. American Society for Testing and signatures as part of the proposed rule. Federal requirements for written signatures as part of the proposed rule. Materials (ASTM), Committee E31 on 2. Health Care Clearinghouses Computerized Systems participated in I. Effective Dates the security discussions. a. We would require in § 142.306(b) that each health care clearinghouse Health plans would be required to 4. Association for Electronic Health comply with the security and electronic Care Transactions (AFEHCT), the comply with the security standard to ensure all health care information and signature standards as follows: clearinghouse organization, provided 1. Each health plan that is not a small information on its health care activities are protected from unauthorized access. If the health plan would have to comply with transaction process requirements and the requirements of §§ 142.306, 142.308, clearinghouse is part of a larger emphasized that the security standard and 142.310 no later than 24 months organization, then security must be must be adaptable to different business after publication of the final rule. needs. imposed to prevent unauthorized access 2. Each small health plan would have 5. Computer-based Patient Record by the larger organization. The security to comply with the requirements of Institute (CPRI) was consulted because standards apply to all health §§ 142.306, 142.308, and 142.310 no the Work Group on Confidentiality, information pertaining to an individual later than 36 months after the date of Privacy and Security is working on the that is electronically maintained or publication of the final rule. establishment of guidelines, electronically transmitted. 3. If the effective date for the confidentiality agreements, security b. In § 142.310(a), entities would not electronic transaction standards is later requirements, and frameworks. CPRI be required to use an electronic than the effective date for the security works closely with accredited standards signature. However, if a plan elects to standard, implementation of the development organizations. use an electronic signature in one of the security standard would not be delayed 6. Health Level Seven (HL–7) has transactions named in the law, it would until the standard transactions are in been contacted through its participation be required to apply the electronic use. The security standard would still at the HISB meetings. signature standard described in be effective with respect to 7. NUCC and the NUBC were apprised § 142.310(b) to that transaction. In the electronically stored or maintained data. of the different implementation teams’ future, we anticipate that the standards Security of health information would efforts. NUBC has not addressed for other transactions may include not be solely tied to the standard security issues at any of the public requirements for signatures. In transactions but would apply to all meetings. NUCC identified a number of particular, the proposed standard for individual health information issues at its November 18–19 meeting claims attachments, which will be electronically stored, maintained, or and provided written comments to us. issued in a separate regulations package transmitted. later, may include signature 4. Under this proposed rule, in some H. Rules for Security Standards and requirements on some or all of the cases, a health plan could choose to Electronic Signature Standard attachments. If the proposed convert from paper to standard EDI 1. Health Plans attachments standard includes such transactions prior to the effective date of a. In § 142.306(a), we would require signature requirements, we will address the security standard. We would health plans to accept and apply the the issue of how to reconcile such recommend that the security standard security standard to all health care requirements with existing State and be implemented at that time in order to information pertaining to an individual Federal requirements for written safeguard the data in those transactions. that is electronically maintained or signatures as part of the proposed rule. We invite comments on this issue. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43259

Failure to comply with standards may provision falls within one or more of the or replacement would be a clear result in monetary penalties. The exceptions. improvement over the current standard. Secretary is required by statute to The electronic signature standard + Provide specifications and impose penalties of not more than $100 (digital signature) would be deemed to technical capabilities on the revised or per violation on any person who fails to satisfy Federal and State statutory new standard, including any additional comply with a standard, except that the requirements for written signatures with system requirements. total amount imposed on any one respect to the named transactions + Provide an explanation, no more person in each calendar year may not referred to in the legislation. than five pages, of how the organization exceed $25,000 for violations of one Several accreditation organizations intends to test the standard. • requirement. such as the Electronic Healthcare The committee’s evaluation would, We are not proposing any Network Accreditation Commission at a minimum, be based on the enforcement procedures at this time, but (EHNAC), the Joint Commission on following: we plan to do so in a future Federal Accreditation of Healthcare + A cost-benefit analysis. Register document once the industry Organizations (JCAHO), and the + An assessment of whether the has some experience with using the National Committee for Quality proposed revision or replacement standards. These procedures will be in Assurance (NCQA), indicate that one of demonstrates a clear improvement to an place by the time the standards are their accreditation requirements will be existing standard. implemented by industry. We envision compliance with the HIPAA security + The extent and length of time of the the monitoring and enforcement process and electronic signature (if applicable) waiver. • The evaluation committee would as a partnership between the Federal standards. government and the private sector. inform the organization requesting the Some private accreditation bodies have IV. New and Revised Standards waiver within 30 working days of the already exhibited interest in certifying To encourage innovation and promote committee’s decision on the waiver compliance with the security development, we plan to establish a request. If the committee decides to requirements as part of their process to allow an organization to grant a waiver, the notification may accreditation reviews. Small providers request a revision or replacement to any include the following: + Committee comments such as the may be able to self-certify through adopted standard or standards. An following: industry-developed checklists. HHS organization could request a revision or would likely retain the final replacement to an adopted standard by —The length of time for which the responsibility for determining violations requesting a waiver from the Secretary waiver applies if it differs from the and imposing the penalties specified by of Health and Human Services to test a waiver request. the statute. We welcome comments on revised or new standard. The —The sites the committee believes are this approach. organization would be required, at a appropriate for testing if they differ III. Implementation minimum, to demonstrate that the from the waiver request. —Any pertinent information regarding If an entity elects to use an electronic revised or new standard offers a clear improvement over the adopted the conditions of an approved waiver. signature in a transaction, or if an • Any organization that receives a standard. If the organization presents electronic signature is required by a waiver would be required to submit a sufficient documentation that supports transaction standard adopted by the report containing the results of the testing of a revised or new standard, we Secretary, the entity must apply the study, no later than 3 months after the want to be able to grant the organization electronic signature standard described study is completed. a temporary waiver to test while in § 142.310(b). • The committee would evaluate the remaining in compliance with the law. How the security standard would be report and determine whether the We do not intend to establish a process implemented is dependent upon benefits of the proposed revision or new that would allow an organization to industry trading partner agreements for standard significantly outweigh the avoid using any adopted standard. electronic transmissions. The health disadvantages of implementing it and care industry would be able to adapt the We would welcome comments on the make a recommendation to the security matrix to meet its business following: (1) How we should establish Secretary. needs. We propose that the this process, (2) the length of time a requirements of the security standard be proposed standard should be tested V. Response to Comments implemented over time. However, we before we decide whether to adopt it, (3) Because of the large number of items would require implementation to be whether we should solicit public of correspondence we normally receive complete by the applicable effective comments before implementing a on Federal Register documents date. We would encourage, but not change in a standard, and (4) other published for comment, we are not able require that entities comply with the issues and recommendations we should to acknowledge or respond to them security standard as soon as practicable, consider. Comments should be individually. We will consider all preferably before implementing the submitted to the addresses presented in comments we receive by the date and transactions standards. the ADDRESSES section of this document. time specified in the DATES section of The security standard would The following is one possible process: this preamble, and, if we proceed with supersede contrary provisions of State • Any organization that wishes to a subsequent document, we will law including State law requiring revise or replace an adopted standard respond to the major comments in the medical or health plan records to be would submit its waiver request to an preamble of that document. maintained or transmitted in other HHS evaluation committee (to be electronic formats. There are certain established or defined). The VI. Impact Analysis exceptions when the standards would organization would do the following for As the effect of any one standard is not supersede contrary provisions of each standard it wishes to revise or affected by the implementation of other State law; section 1178 identifies those replace: standards, it can be misleading to conditions and directs the Secretary to + Provide a detailed explanation, no discuss the impact of one standard by determine whether a particular State more than 10 pages, of how the revision itself. Therefore, we did an impact 43260 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules analysis on the total effect of all the availability of the information. The One alternative course of action to standards in the proposed rule safeguards also protect the information encrypting the information would be to concerning the national provider against any reasonably anticipated use the services of a VAN. VANs do not identifier (HCFA–0045–P), which was threats or hazards to the security or manipulate data, but rather transmit published on May 7, 1998 (63 FR integrity of the information and protect data in its native form over 25320). it against unauthorized use or telecommunication lines. We anticipate We intend to publish in each disclosure. Recommendation 1 from the that VANs would be positively affected proposed rule an impact analysis that is National Research Council’s (NRC) by administrative simplification, specific to the standard or standards report For the Record: Protecting because use of the proposed proposed in that rule, but the impact Electronic Health Information (‘‘All transactions standards would eliminate analysis will assess only the relative organizations that handle patient- the need for data to be reformatted. This cost impact of implementing a given identifiable health care information— would allow providers to purchase the standard. Thus, the following regardless of size—should adopt the set services of a VAN directly, rather than discussion contains the impact analysis of technical and organization policies, as a service bundled with the functions for the security standard and the practices, and procedures described of other clearinghouses. Another course electronic signature standard proposed ** * to protect such information.’’) of action might be to use private lines in this rule. As stated in the general would apply to all health care providers which would provide an appropriate impact analysis in HCFA–0045–P, we regardless of size, health care level of protection for data in do not intend to associate costs and clearinghouses, and health plans. We transmission. savings to specific standards. agree with the NRC’s belief that B. Electronic Signature Standard Although we cannot determine the implementation of the practices and specific economic impact of the technologies delineated in HIPAA does not require the use of standards being proposed in this rule Recommendation 1 would be possible electronic signatures. This particular (and individually each standard may today, and at a reasonable cost. capability, however, would be necessary not have a significant impact), the Health care providers that conduct for a completely paperless environment. overall impact analysis makes clear that, electronic transactions with health Certain features of the digital signature collectively, all the standards will have plans would have to comply with the type of electronic signature make this a significant impact of over $100 million recommendation(s) for security particular system the most desirable. on the economy. Also, while each protection. There is, however, no Only digital signatures, using current standard may not have a significant requirement to maintain health records technology, provide the combination of impact on a substantial number of small electronically or transmit health care authenticity, message integrity, and entities, the combined effects of all the information by electronic means. There nonrepudiation which is viewed as a proposed standards may have a may also be health care providers that desirable complement to the security significant effect on a substantial currently submit health care standards required by the law. number of small entities. Therefore, the information on paper but archive The use of digital signatures requires following impact analysis should be records electronically. These entities a certain infrastructure (Public Key read in conjunction with the overall will need to ensure that their existing Infrastructure) that may necessitate the impact analysis. electronic systems conform to security expenditure of initial and recurring The following describes the specific requirements for maintaining health costs for users. We do not know what impacts that relate to the security and information. Once they have done so, these costs are presently, due to the lack electronic signature standards. Security however, they may also take advantage of maturity of digital signature protection for health care information is of all the other benefits of electronic technology, and minimal use in the not a ‘‘stand-alone’’ type requirement. recordkeeping and transmittal. marketplace today. It is noted that Appropriate security protections will be Therefore, no individual small entity is public key certificate management a business enabler, encouraging the expected to experience direct costs that systems and services do exist today, and growth and use of electronic data exceed benefits as a result of this rule. it is presumed more quantifiable interchange. The synergistic effect of the Furthermore, because almost all of the information will be forthcoming, as to employment of the recommended NRC recommendations reflect potential costs and savings that can be security practices, procedures and contemporary security measures and associated with the use of digital technologies will enhance all aspects of controls, most organizations that signature systems. Other forms of HIPAA’s Administrative Simplification currently have security measures should electronic signature were considered, requirements. In addition, it is have to make few, if any, modifications such as biometric and digitized important to recognize that security is to their systems to meet the signatures. While they provide a useful not a product, but is an on-going, requirements proposed in the security capability in certain circumstances, we dynamic process. standard. believe that digital signature technology In accordance with the provisions of The singular exception to the above is most appropriate for this particular Executive Order 12866, this proposed lies in the area of providing security for application. rule was reviewed by the Office of the electronic transmission of health C. Guiding Principles for Standard Management and Budget. care information over insecure, public media. Here, the choice of a method to Selection A. Security Standard use is driven by economic factors. If an The implementation teams charged HIPAA requires that all health plans, organization wishes to use an insecure with designating standards under the health care providers, and health care transmission media such as the Internet, statute have defined, with significant clearinghouses that maintain or transmit and take advantage of the low costs input from the health care industry, a health information electronically involved, off-setting costs may need to set of common criteria for evaluating establish and maintain reasonable and be incurred to provide for an acceptable potential standards. These criteria are appropriate administrative, technical, form of encryption so that health based on direct specifications in the and physical safeguards to ensure information will be protected from HIPAA, the purpose of the law, and integrity, confidentiality, and intercept and possible misuse. principles that support the regulatory Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43261 philosophy set forth in EO 12866 of information technology. This principle We recognize that this conversion September 30, 1993. In order to be supports the regulatory goals of process has the potential to cause designated as a standard, EO 12866 flexibility and encouragement of business disruption of some health requires that a proposed standard: innovation. plans. However, health plans would be • Improve the efficiency and We assessed a wide variety of security able to schedule their implementation of effectiveness of the health care system standards, guidelines and electronic the security standard and other by leading to cost reductions for or signature standards against the standards in a way that best fits their improvements in benefits from principles listed above, with the overall needs, as long as they meet the electronic HIPAA health care goal of achieving the maximum benefit deadlines specified in the law. transactions. This principle supports the for the least cost. We found that there Implementation of the security regulatory goals of cost-effectiveness exists no single standard for security or standard and the electronic signature and avoidance of burden. standard, if used by the entities, would • electronic signature that encompasses Meet the needs of the health data all the requirements that have been enhance payment safeguard activities standards user community, particularly deemed necessary. However, in this and protect the integrity of the Medicare health care providers, health plans, and particular area, technology is rapidly trust fund by reducing fraud and abuse that occurs when health care health care clearinghouses. This developing enhancements and better information is used by those who are principle supports the regulatory goal of means for accomplishing the stated not authorized to receive it. In addition cost-effectiveness. goals. • Be consistent and uniform with the these standards would assist the plans, other HIPAA standards (that is, their D. Affected Entities providers, and clearinghouses to more data element definitions and codes and effectively maintain the security of all 1. Health Care Providers their privacy and security requirements) health information in their databases. and, secondarily, with other private and Health care providers that conduct 3. Clearinghouses public sector health data standards. This business using electronic transactions principle supports the regulatory goals with other health care participants (such Health care clearinghouses would face of consistency and avoidance of as other health care providers, health impacts similar to those experienced by incompatibility, and it establishes a plans, and employers) or maintain health care providers and health plans. performance objective for the standard. electronic health information are Systems vendors, that provide computer • Have low additional development encouraged, but are not required to software applications to health care and implementation costs relative to the simultaneously implement the proposed providers and other billers of health benefits of using the standard. This security standard. However, if the care services, would likely be positively principle supports the regulatory goals effective date for the electronic affected. These vendors would have to of cost-effectiveness and avoidance of transaction standards is later than the develop software solutions that would burden. effective date for the security standard, allow health care providers and other • Be supported by an ANSI- the implementation of the security billers of health care transactions to accredited standards developing standard will not be delayed until the protect the information in their organization or other private or public standard transactions are in use. databases from unwanted access to their organization that would ensure systems. Health care providers that transmit, continuity and efficient updating of the receive, or maintain health information 4. Unfunded Mandates standard over time. This principle would incur implementation costs for supports the regulatory goal of This proposed rule has been reviewed establishing or updating their security predictability. in accordance with the Unfunded • Have timely development, testing, systems. Any negative impact on these Mandates Reform Act of 1995 (UMRA) implementation, and updating health care providers caused by (U.S.C. 1501 et seq.) and Executive procedures to achieve administrative implementing the proposed security Order 12875. As discussed in the simplification benefits faster. This standard would generally be related to combined impact analysis referenced principle establishes a performance the initial implementation period for the above (see Federal Register, Volume 63, objective for the standard. specific requirements of the security No. 88), DHHS estimates that • Be technologically independent of standard. Health care providers that are implementation of the standards will the computer platforms and indirectly involved in electronic require the expenditure of more than transmission protocols used in HIPAA transactions (for example, those who $100 million by the private sector. health transactions, except when they submit a paper claim that the health Therefore, the rule establishes a Federal are explicitly part of the standard. This plan transmits electronically to a private sector mandate and is a principle establishes a performance secondary payer) and do not maintain significant regulatory action within the objective for the standard and supports electronic health information would not meaning of section 202 of UMRA (2 the regulatory goal of flexibility. be affected. U.S.C. 1532). DHHS has included this • Be precise and unambiguous but as 2. Health Plans statement to address the anticipated simple as possible. This principle effects of the proposed rules pursuant to supports the regulatory goals of Health plans that engage in electronic section 202. predictability and simplicity. health care transactions would have to These standards also apply to State • Keep data collection and paperwork modify their systems to use the security and local governments in their roles as burdens on users as low as is feasible. standard and the electronic signature health plans or health care providers. This principle supports the regulatory standard, if used. Health plans that Thus, the proposed rules impose goals of cost-effectiveness and maintain electronic health information unfunded mandates on these entities. avoidance of duplication and burden. would also have to modify their systems While we do not have sufficient • Incorporate flexibility to adapt more to use the security standard. This information to provide estimates of easily to changes in the health care conversion would have a one-time cost these impacts, several State Medicaid infrastructure (such as new services, impact on Federal, State and private agencies have estimated that it would organizations, and provider types) and plans alike. cost $1 million per State to implement 43262 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules all of the HIPAA standards. However, Only those plans, providers, and while others will utilize consultants. the Congressional Budget Office clearinghouses that decide to use the Practice management software vendors analysis stated that ‘‘States are already digital signature would be affected by may also provide security consultation in the forefront in administering the the electronic signature standard. Some services to their customers. Entities may Medicaid program electronically; the large health plans, health care also choose to implement security only costs—which should not be providers, and health care measures that require hardware or significant—would involve bringing the clearinghouses that currently exchange software purchases at the time they do software and computer systems for the health information among trading routine equipment upgrades. Medicaid programs into compliance partners may have security systems and The security requirements we are with the new standards.’’ procedures in place to protect the proposing were developed with The anticipated benefits and costs of information from unauthorized access. considerable input from the health care this proposed standard, and other issues These entities may not incur significant industry, including providers, health raised in section 202 of the UMRA, are costs to meet the proposed security plans, clearinghouses, vendors, and addressed in the analysis below, and in standard and if they opt not to use the standards organizations. Industry the combined impact analysis. In digital signature they would not incur members strongly advocated this addition, under section 205 of the costs to meet the electronic signature flexible approach, which permits each UMRA (2 U.S.C. 1535), having requirements. Also, some entities that affected entity to develop cost-effective considered a reasonable number of currently use electronic signatures as an security measures. We believe that this alternatives as outlined in the preamble added security measure may also be approach will yield the lowest to this rule and in the following using digital signature technology. At implementation cost to industry while analysis, the Department has concluded most, large entities that may have assuring that health information is that the rule is the most cost-effective sophisticated security systems in place safeguarded. We solicit input regarding alternative for implementation of may only need to revise or update their implementation costs. DHHS’’ statutory objective of systems to meet the proposed security We are unable to estimate, of the administrative simplification. standard and electronic signature nation’s 4 million-plus health plans and standard. 1.2 million-plus providers, the number 5. Regulatory Flexibility Act of entities that would require security 2. Complexity of Conversion The Regulatory Flexibility Act (RFA) systems and procedures because they of 1980, Public Law 96-354, requires us The complexity of the conversion conduct electronic transactions or to prepare a regulatory flexibility would be significantly affected by the maintain electronic health information. analysis if the Secretary certifies that a volume of claims health plans process Nor are we able to estimate the number proposed regulation would have a electronically and the desire to transmit of entities that neither conduct significant economic impact on a the claims themselves or to use the electronic transactions nor maintain substantial number of small entities. services of a VAN or a clearinghouse. If electronic health information but may The security and electronic signature they chose to transmit themselves, they choose to do so at some future time. standards will affect small entities, such would need to convert to the proposed (These would be entities that send and as providers. A more detailed analysis transaction standards. Specific receive paper transactions and maintain of the impact on small entities is part of technology limitations of existing paper records and thus would not be the impact analysis we published on systems could affect the complexity of affected because they would have no May 7, 1998 (63 FR 25320) for all the the conversion. For example, some need to implement security standards.) HIPAA standards. A detailed entities may only have a minimum level However, we are aware of the possibility illustration of the potential impact of of security and procedures in place and that those small entities that currently the security standard on a small health therefore may require a full upgrade, process claims electronically or care provider can be found in the while others may already have a very maintain electronic health information preamble in section D. sophisticated system and procedures may not be able to continue to do so due and require very little enhancement. to the cost of establishing security E. Factors in Establishing the Security systems to meet the requirements of the Standard 3. Cost of Conversion proposed security standard. Those We expect that most providers, health entities that are not able to bill and 1. Selection of Security Systems and plans, and clearinghouses that transmit exchange health information Procedures or store data electronically have already electronically may use clearinghouses. Because there is no national security implemented some security measures We believe that the proposed security standard in widespread use throughout and will primarily need to assess standard represents the minimum the industry, adopting any of the existing security, identify areas of risk, necessary for adequate protection of candidate standards would require most and implement additional measures. We health information in an electronic health care providers, health plans and cannot estimate the per-entity cost of format. As discussed earlier in this health care clearinghouses to conform to implementation because there is no preamble, the security requirements are the new standard. Implementation of information available regarding the both scalable and technically flexible; the security standard would require all extent to which providers’, plans’, and and while the law requires each health health plans, health care providers, and clearinghouses’ current security plan that is not a small plan to comply health care clearinghouses to establish practices are deficient. Moreover, some with the security and electronic or revise their security precautions security solutions are almost cost-free to signature requirements no later than 24 because the proposed standard is not implement (e.g., reminding employees months after the effective date of the currently in use. The selection of the not to post passwords on their monitors) final rule, small plans will be allowed security standard does not impose a while others are not. an additional 12 months to comply. greater burden on the industry than the Affected entities will have many Since we are unable to estimate the nonselected options, and presents choices regarding how they will number of entities, we are also unable significant advantages in terms of implement security. Some may choose to estimate the cost to the entities that universality, uniqueness and flexibility. to assess security using in-house staff, will process electronic transactions. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43263

However, we believe that the cost of demonstrate that these measures have subject to OMB review and approval establishing security systems and been periodically reviewed, validated, under the PRA. procedures is a portion of the costs updated, and kept current. We invite public comment on the associated with converting to the While we solicit comment on these issues discussed above. If the transaction standards that are required recordkeeping requirements we requirements, as set forth in § 142.310 under HIPAA. explicitly solicit comment on the are determined to be subject to the PRA, This discussion on conversion costs burden associated with maintaining we will submit these requirements to relates only to health plans, health care documentation related to the OMB for PRA approval. If you comment providers, and health care implementation the requirements set on these information collection and clearinghouses that are required to forth in § 142.308. Since the level of recordkeeping requirements, please e- follow the security standard to documentation necessary to mail comments to [email protected] maintain, transmit or receive electronic demonstrate compliance with these (Attn: HCFA–0049) or mail copies health information. Other entities would requirements is dependent upon directly to the following: not be required to follow the security individual business needs and the fact Health Care Financing Administration, standard and procedures until they that we do not prescribe the form, Office of Information Services, choose to maintain, transmit, or receive format, or degree of documentation Security and Standards Group, electronic health information. The cost necessary to demonstrate compliance, Division of HCFA Enterprise of establishing security systems and we are currently unable to accurately Standards, Room N2–14–26, 7500 procedures for entities that do not estimate the degree of recordkeeping Security Boulevard, Baltimore, MD transmit, receive or maintain health burden that will be experienced by the 21244–1850. Attn: John Burke HCFA– information electronically is not varying entities. Therefore, commentors 0049, HCFA Reports Clearance Officer included in our estimates. should provide an estimate of: (1) the And initial recordkeeping burden associated VII. Collection of Information Office of Information and Regulatory with meeting these requirements and (2) Requirements Affairs, Office of Management and the recordkeeping burden associated Budget, Room 10235, New Executive Under the Paperwork Reduction Act with maintaining documentation to Office Building, Washington, DC of 1995, we are required to provide 60- demonstrate that the measures have 20503, Attn: Allison Herron Eydt, day notice in the Federal Register and been periodically reviewed, validated, HCFA Desk Officer solicit public comment before a updated, and kept current. collection of information requirement is Below is a discussion of the List of Subjects in 45 CFR Part 142 submitted to the Office of Management applicability of the PRA as it may relate Administrative practice and and Budget (OMB) for review and to the adoption of the standard approval. In order to fairly evaluate procedure, Health facilities, Health referenced in § 142.310 of this insurance, Hospitals, Medicaid, whether an information collection regulation. should be approved by OMB, section Medicare, Report and recordkeeping 3506(c)(2)(A) of the Paperwork Section 142.310 Electronic Signature requirement. Reduction Act of 1995 requires that we Standard 45 CFR subtitle A, subchapter B, solicit comment on the following issues: In summary, any entity electing to use would be amended by adding part 42 to • The need for the information an electronic signature in a transaction read as follows: collection and its usefulness in carrying as defined in § 142.103, or if an Note to Reader: This proposed rule is one out the proper functions of our agency. of several proposed rules that are being • The accuracy of our estimate of the electronic signature is required by a transaction standard adopted by the published to implement the administrative information collection burden. simplification provisions of the Health • The quality, utility, and clarity of Secretary, the entity must apply the electronic signature standard described Insurance Portability and Accountability Act the information to be collected. of 1996. We propose to establish a new 45 • Recommendations to minimize the in paragraph (b) of this section to that CFR Part 142. Proposed Subpart A—General information collection burden on the transaction. Provisions is exactly the same in each rule affected public, including automated Discussion unless we have added new sections or collection techniques. definitions to incorporate additional general As discussed below, we are soliciting The emerging and increasing use of information. The subparts that follow relate comment on the recordkeeping health care EDI standards and to the specific provisions announced requirements, as referenced in § 142.308 transactions raises the issue of the separately in each proposed rule. When we publish the first final rule, each subsequent of this document. In addition, we are applicability of the PRA. The question arises whether a regulation that adopts final rule will revise or add to the text that soliciting comment on the applicability is set out in the first final rule. of the PRA as it may relate to the an EDI standard used to exchange requirement to use the standard adopted certain information constitutes an PART 142ÐADMINISTRATIVE in § 142.310 of this regulation. information collection subject to the REQUIREMENTS PRA. Section 142.308 Security Standard In particular, we are still considering Subpart AÐGeneral Provisions In summary, each entity designated in whether the use of any EDI transaction Sec. § 142.302 must maintain documentation standard, such as the electronic 142.101 Statutory basis and purpose. demonstrating the development, signature described in this regulation, 142.102 Applicability. implementation, and maintenance of should be viewed or regarded as a 142.103 Definitions. appropriate security measures that standardized electronic collection of 142.104 General requirements for health plans. include, at a minimum, the information. If it is a standardized 142.105 Compliance using a health care requirements and implementation electronic information collection, then clearinghouse. features set forth in this section. In the requirement by the Federal 142.106 Effective dates of a modification to addition, entities must maintain government on the industry to accept a standard or implementation necessary documentation to and transmit the information may be specification. 43264 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

Subpart BÐReserved payer or payers, and forwards the organization regulated for solvency Subpart CÐSecurity and Electronic processed transaction to appropriate under State law in the same manner and Signature Standards payers and clearinghouses. Billing to the same extent as such a health Sec. services, repricing companies, maintenance organization. 142.302 Applicability and scope. community health management (4) Part A or Part B of the Medicare 142.304 Definitions. information systems, community health program under title XVIII of the Social 142.306 Rules for the security standard. information systems, and ‘‘value-added’’ Security Act. 142.308 Security standard. networks and switches are considered to (5) The Medicaid program under title 142.310 Electronic signature standard. be health care clearinghouses for XIX of the Social Security Act. 142.312 Effective date of the initial purposes of this part. (6) A Medicare supplemental policy implementation of the security and Health care provider means a (as defined in section 1882(g)(1) of the electronic standards. provider of services as defined in Social Security Act, 42 U.S.C. 1395ss). Authority: Sections 1173 and 1175 of the section 1861(u) of the Social Security (7) A long-term care policy, including Social Security Act (42 U.S.C. 1320d–2 and Act, 42 U.S.C. 1395x, a provider of 1320d–4). a nursing home fixed-indemnity policy. medical or other health services as (8) An employee welfare benefit plan defined in section 1861(s) of the Social or any other arrangement that is Subpart AÐGeneral Provisions Security Act, and any other person who established or maintained for the § 142.101 Statutory basis and purpose. furnishes or bills and is paid for health purpose of offering or providing health care services or supplies in the normal Sections 1171 through 1179 of the benefits to the employees of two or more course of business. employers. Social Security Act, 42 U.S.C. 1320d, as Health information means any added by section 262 of the Health (9) The health care program for active information, whether oral or recorded in military personnel under title 10 of the Insurance Portability and any form or medium, that— Accountability Act of 1996, require HHS United States Code. (1) Is created or received by a health (10) The veterans health care program to adopt national standards for the care provider, health plan, public health electronic exchange of health under 38 U.S.C. chapter 17. authority, employer, life insurer, school (11) The Civilian Health and Medical information in the health care system. or university, or health care The purpose of the sections of this part Program of the Uniformed Services clearinghouse; and (CHAMPUS), as defined in 10 U.S.C. is to promote administrative (2) Relates to the past, present, or 1072(4). simplification. future physical or mental health or (12) The Indian Health Service condition of an individual, the § 142.102 Applicability. program under the Indian Health Care provision of health care to an (a) The standards adopted or Improvement Act (25 U.S.C. 1601 et individual, or the past, present, or designated under this part apply, in seq.). future payment for the provision of whole or in part, to the following: (13) The Federal Employees Health (1) A health plan. health care to an individual. Health plan means an individual or Benefits Program under 5 U.S.C. chapter (2) A health care clearinghouse when 89. doing the following: group plan that provides, or pays the cost of, medical care. Health plan (14) Any other individual or group (i) Transmitting a standard transaction health plan, or combination thereof, that (as defined in § 142.103) to a health care includes the following, singly or in combination: provides or pays for the cost of medical provider or health plan. care. (ii) Receiving a standard transaction (1) Group health plan. A group health plan is an employee welfare benefit plan Medical care means the diagnosis, from a health care provider or health cure, mitigation, treatment, or plan. (as currently defined in section 3(1) of the Employee Retirement Income and prevention of disease, or amounts paid (iii) Transmitting and receiving the for the purpose of affecting any body standard transactions when interacting Security Act of 1974, 29 U.S.C. 1002(1)), including insured and self-insured structure or function of the body; with another health care clearinghouse. amounts paid for transportation (3) A health care provider when plans, to the extent that the plan primarily for and essential to these transmitting an electronic transaction as provides medical care, including items items; and amounts paid for insurance defined in § 142.103. and services paid for as medical care, to (b) Means of compliance are stated in employees or their dependents directly covering the items and the greater detail in § 142.105. or through insurance, or otherwise, transportation specified in this and— definition. § 142.103 Definitions. (i) Has 50 or more participants; or Participant means any employee or For purposes of this part, the (ii) Is administered by an entity other former employee of an employer, or any following definitions apply: than the employer that established and member or former member of an Code set means any set of codes used maintains the plan. employee organization, who is or may for encoding data elements, such as (2) Health insurance issuer. A health become eligible to receive a benefit of tables of terms, medical concepts, insurance issuer is an insurance any type from an employee benefit plan medical diagnostic codes, or medical company, insurance service, or that covers employees of that employer procedure codes. insurance organization that is licensed or members of such an organization, or Health care clearinghouse means a to engage in the business of insurance whose beneficiaries may be eligible to public or private entity that processes or in a State and is subject to State law that receive any of these benefits. facilitates the processing of nonstandard regulates insurance. ‘‘Employee’’ includes an individual who data elements of health information into (3) Health maintenance organization. is treated as an employee under section standard data elements. The entity A health maintenance organization is a 401(c)(1) of the Internal Revenue Code receives health care transactions from Federally qualified health maintenance of 1986 (26 U.S.C. 401(c)(1)). health care providers or other entities, organization, an organization recognized Small health plan means a group translates the data from a given format as a health maintenance organization health plan or individual health plan into one acceptable to the intended under State law, or a similar with fewer than 50 participants. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43265

Standard means a set of rules for a set standard data elements through the Authentication refers to the of codes, data elements, transactions, or health care clearinghouse. corroboration that an entity is the one identifiers promulgated either by an (b) The transmission, under contract, claimed. organization accredited by the American of nonstandard data elements between a Contingency plan refers to a plan for National Standards Institute or HHS for health plan or a health care provider responding to a system emergency. The the electronic transmission of health and its agent health care clearinghouse plan includes performing backups, information. is not a violation of the requirements of preparing critical facilities that can be Transaction means the exchange of this part. used to facilitate continuity of information between two parties to operations in the event of an emergency, carry out financial and administrative § 142.106 Effective dates of a modification to a standard or implementation and recovering from a disaster. activities related to health care. It specification. includes the following: Encryption (or encipherment) refers to (1) Health claims or equivalent HHS may modify a standard or transforming confidential plaintext into encounter information. implementation specification after the ciphertext to protect it. An encryption (2) Health care payment and first year in which HHS requires the algorithm combines plaintext with other remittance advice. standard or implementation values called keys, or ciphers, so the (3) Coordination of benefits. specification to be used, but not more data becomes unintelligible. Once (4) Health claims status. frequently than once every 12 months. encrypted, data can be stored or (5) Enrollment and disenrollment in a If HHS adopts a modification to a transmitted over unsecured lines. health plan. standard or implementation Decrypting data reverses the encryption (6) Eligibility for a health plan. specification, the implementation date algorithm process and makes the (7) Health plan premium payments. of the modified standard or plaintext available for further (8) Referral certification and implementation specification may be no processing. authorization. earlier than 180 days following the Password refers to confidential (9) First report of injury. adoption of the modification. HHS authentication information composed of (10) Health claims attachments. determines the actual date, taking into a string of characters. account the time needed to comply due (11) Other transactions as the Role-based access control (RBAC) is Secretary may prescribe by regulation. to the nature and extent of the modification. HHS may extend the time an alternative to traditional access § 142.104 General requirements for health for compliance for small health plans. control models (e.g., discretionary or plans. non-discretionary access control If a person conducts a transaction (as Subpart BÐ[Reserved] policies) that permits the specification defined in § 142.103) with a health plan and enforcement of enterprise-specific as a standard transaction, the following Subpart CÐSecurity and Electronic security policies in a way that maps apply: Signature Standards more naturally to an organization’s (a) The health plan may not refuse to structure and business activities. With § 142.302 Applicability and scope. conduct the transaction as a standard RBAC, rather than attempting to map an transaction. The standards adopted or designated organization’s security policy to a (b) The health plan may not delay the under this subpart apply, in whole or in relatively low-level set of technical transaction or otherwise adversely part, to the following: controls (typically, access control lists), affect, or attempt to adversely affect, the (a) A health plan. each user is assigned to one or more person or the transaction on the ground (b) A health care clearinghouse or predefined roles, each of which has that the transaction is a standard health care provider that takes one of been assigned the various privileges transaction. the following actions: needed to perform that role. (c) The health information transmitted (1) Processes any electronic Token refers to a physical item and received in connection with the transmission between any combination necessary for user identification when transaction must be in the form of of health care entities listed in this used in the context of authentication. standard data elements of health section. For example, an electronic device that information. (2) Electronically maintains any can be inserted in a door or a computer (d) A health plan that conducts health information used in an electronic system to obtain access. transmission that has been sent or transactions through an agent must User-based access refers to a security received between any combination of assure that the agent meets all the mechanism used to grant users of a health care entities listed in this section. requirements of this part that apply to system access based upon the identity of the health plan. § 142.304 Definitions. the user. § 142.105 Compliance using a health care For purposes of this subpart, the § 142.306 Rules for the security standard. clearinghouse. following definitions apply: (a) Any person or other entity subject Access refers to the ability or the (a) An entity must apply the security to the requirements of this part may means necessary to read, write, modify, standard described in § 142.308 to all meet the requirements to accept and or communicate data/information or health information pertaining to an transmit standard transactions by otherwise make use of any system individual that is electronically either— resource. maintained or electronically (1) Transmitting and receiving Access control refers to a method of transmitted. standard data elements; or restricting access to resources, allowing (b) If a health care clearinghouse is (2) Submitting nonstandard data only privileged entities access. Types of part of a larger organization, it must elements to a health care clearinghouse access control include, among others, assure that all health information for processing into standard data mandatory access control, discretionary pertaining to an individual is protected elements and transmission by the health access control, time-of-day, and from unauthorized access by the larger care clearinghouse and receiving classification. organization. 43266 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

§ 142.308 Security standard. (v) Testing and revision procedures unclassified automated information is Each entity designated in § 142.302 (the documented process of periodic admissible). must assess potential risks and testing of written contingency plans to (v) Establishing and maintaining vulnerabilities to the individual health discover weaknesses and the subsequent personnel security policies and data in its possession and develop, process of revising the documentation, procedures (formal, documentation of implement, and maintain appropriate if necessary). procedures to ensure that all personnel security measures. These measures must (4) Formal mechanism for processing who have access to sensitive be documented and kept current, and records (documented policies and information have the required authority must include, at a minimum, the procedures for the routine, and as well as appropriate clearances). following requirements and nonroutine, receipt, manipulation, (vi) Assuring that system users, implementation features: storage, dissemination, transmission, including maintenance personnel, (a) Administrative procedures to and/or disposal of health information). receive security awareness training. guard data integrity, confidentiality, (5) Information access control (formal, (8) Security configuration and availability (documented, formal documented policies and procedures for management (measures, practices, and practices to manage the selection and granting different levels of access to procedures for the security of execution of security measures to health care information) that includes information systems that must be protect data, and to manage the conduct all of the following implementation coordinated and integrated with each of personnel in relation to the protection features: other and other measures, practices, and of data). These procedures include the (i) Access authorization (information- procedures of the organization following requirements: use policies and procedures that established in order to create a coherent (1) Certification. (The technical establish the rules for granting access, system of security) that includes all of evaluation performed as part of, and in (for example, to a terminal, transaction, the following implementation features: support of, the accreditation process program, process, or some other user.) (i) Documentation (written security (ii) Access establishment (security that establishes the extent to which a plans, rules, procedures, and policies and rules that determine an particular computer system or network instructions concerning all components entity’s initial right of access to a design and implementation meet a pre- of an entity’s security). terminal, transaction, program, process (ii) Hardware and software specified set of security requirements. or some other user). installation and maintenance review This evaluation may be performed (iii) Access modification (security and testing for security features (formal, internally or by an external accrediting policies and rules that determine the documented procedures for connecting agency.) types of, and reasons for, modification and loading new equipment and (2) A chain of trust partner agreement to an entity’s established right of access, programs, periodic review of the (a contract entered into by two business to a terminal, transaction, program, maintenance occurring on that partners in which the partners agree to process, or some other user.) equipment and programs, and periodic electronically exchange data and protect (6) Internal audit (in-house review of security testing of the security attributes the integrity and confidentiality of the the records of system activity (such as of that hardware/software). data exchanged). logins, file accesses, and security (iii) Inventory (the formal, (3) A contingency plan, a routinely incidents) maintained by an documented identification of hardware updated plan for responding to a system organization). and software assets). emergency, that includes performing (7) Personnel security (all personnel (iv) Security testing (process used to backups, preparing critical facilities that who have access to any sensitive determine that the security features of a can be used to facilitate continuity of information have the required system are implemented as designed operations in the event of an emergency, authorities as well as all appropriate and that they are adequate for a and recovering from a disaster. The plan clearances) that includes all of the proposed applications environment; this must include all of the following following implementation features: process includes hands-on functional implementation features: (i) Assuring supervision of testing, penetration testing, and (i) An applications and data criticality maintenance personnel by an verification). analysis (an entity’s formal assessment authorized, knowledgeable person. (v) Virus checking. (The act of of the sensitivity, vulnerabilities, and These procedures are documented running a computer program that security of its programs and information formal procedures and instructions for identifies and disables: it receives, manipulates, stores, and/or the oversight of maintenance personnel (A) Another ‘‘virus’’ computer transmits). when the personnel are near health program, typically hidden, that attaches (ii) Data backup plan (a documented information pertaining to an individual. itself to other programs and has the and routinely updated plan to create (ii) Maintaining a record of access ability to replicate. and maintain, for a specific period of authorizations (ongoing documentation (B) A code fragment (not an time, retrievable exact copies of and review of the levels of access independent program) that reproduces information). granted to a user, program, or procedure by attaching to another program. (iii) A disaster recovery plan (the part accessing health information). (C) A code embedded within a of an overall contingency plan that (iii) Assuring that operating and program that causes a copy of itself to contains a process enabling an maintenance personnel have proper be inserted in one or more other enterprise to restore any loss of data in access authorization (formal programs.) the event of fire, vandalism, natural documented policies and procedures for (9) Security incident procedures disaster, or system failure). determining the access level to be (formal documented instructions for (iv) Emergency mode operation plan granted to individuals working on, or reporting security breaches) that include (the part of an overall contingency plan near, health information). all of the following implementation that contains a process enabling an (iv) Establishing personnel clearance features: enterprise to continue to operate in the procedures (a protective measure (i) Report procedures (documented event of fire, vandalism, natural applied to determine that an formal mechanism employed to disaster, or system failure). individual’s access to sensitive document security incidents). Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43267

(ii) Response procedures (documented access to the protected facility or (1) Assigned security responsibility formal rules or instructions for actions system). (practices established by management to to be taken as a result of the receipt of (ii) Removal from access lists manage and supervise the execution and a security incident report). (physical eradication of an entity’s use of security measures to protect data (10) Security management process access privileges). and to manage and supervise the (creation, administration, and oversight (iii) Removal of user account(s) conduct of personnel in relation to the of policies to ensure the prevention, (termination or deletion of an protection of data). detection, containment, and correction individual’s access privileges to the (2) Media controls (formal, of security breaches involving risk information, services, and resources for documented policies and procedures analysis and risk management). It which they currently have clearance, that govern the receipt and removal of includes the establishment of authorization, and need-to-know when hardware/software (such as diskettes accountability, management controls such clearance, authorization and need- and tapes) into and out of a facility) that (policies and education), electronic to-know no longer exists). include all of the following controls, physical security, and (iv) Turning in of keys, tokens, or implementation features: penalties for the abuse and misuse of its cards that allow access (formal, (i) Access control. assets (both physical and electronic) documented procedure to ensure all (ii) Accountability (the property that that includes all of the following physical items that allow a terminated ensures that the actions of an entity can implementation features: employee to access a property, building, be traced uniquely to that entity). (i) Risk analysis, a process whereby or equipment are retrieved from that (iii) Data backup (a retrievable, exact cost-effective security/control measures employee, preferably before copy of information). may be selected by balancing the costs termination). (iv) Data storage (the retention of of various security/control measures (12) Training (education concerning health care information pertaining to an against the losses that would be the vulnerabilities of the health individual in an electronic format). expected if these measures were not in information in an entity’s possession (v) Disposal (final disposition of place. and ways to ensure the protection of (ii) Risk management (process of electronic data, and/or the hardware on that information) that includes all of the assessing risk, taking steps to reduce which electronic data is stored). risk to an acceptable level, and following implementation features: (3) Physical access controls (limited maintaining that level of risk). (i) Awareness training for all access) (formal, documented policies (iii) Sanction policies and procedures personnel, including management and procedures to be followed to limit (statements regarding disciplinary personnel (in security awareness, physical access to an entity while actions that are communicated to all including, but not limited to, password ensuring that properly authorized access employees, agents, and contractors; for maintenance, incident reporting, and is allowed) that include all of the example, verbal warning, notice of viruses and other forms of malicious following implementation features: disciplinary action placed in personnel software). (i) Disaster recovery (the process files, removal of system privileges, (ii) Periodic security reminders enabling an entity to restore any loss of termination of employment, and (employees, agents, and contractors are data in the event of fire, vandalism, contract penalties). They must include made aware of security concerns on an natural disaster, or system failure). employee, agent, and contractor notice ongoing basis). (ii) An emergency mode operation of civil or criminal penalties for misuse (iii) User education concerning virus (access controls in place that enable an or misappropriation of health protection (training relative to user entity to continue to operate in the information and must make employees, awareness of the potential harm that can event of fire, vandalism, natural agents, and contractors aware that be caused by a virus, how to prevent the disaster, or system failure). violations may result in notification to introduction of a virus to a computer (iii) Equipment control (into and out law enforcement officials and system, and what to do if a virus is of site) (documented security regulatory, accreditation, and licensure detected). procedures for bringing hardware and organizations. (iv) User education in importance of software into and out of a facility and (iv) Security policy (statement(s) of monitoring log-in success or failure and for maintaining a record of that information values, protection how to report discrepancies (training in equipment. This includes, but is not responsibilities, and organization the user’s responsibility to ensure the limited to, the marking, handling, and commitment for a system). This is the security of health care information). disposal of hardware and storage framework within which an entity (v) User education in password media.) establishes needed levels of information management (type of user training in the (iv) A facility security plan (a plan to security to achieve the desired rules to be followed in creating and safeguard the premises and building confidentiality goals. changing passwords and the need to (exterior and interior) from (11) Termination procedures (formal keep them confidential). unauthorized physical access and to documented instructions, which (b) Physical safeguards to guard data safeguard the equipment therein from include appropriate security measures, integrity, confidentiality, and unauthorized physical access, for the ending of an employee’s availability. Protection of physical tampering, and theft). employment or an internal/external computer systems and related buildings (v) Procedures for verifying access user’s access) that include procedures and equipment from fire and other authorizations before granting physical for all of the following implementation natural and environmental hazards, as access (formal, documented policies and features: well as from intrusion. It covers the use instructions for validating the access (i) Changing locks (a documented of locks, keys, and administrative privileges of an entity before granting procedure for changing combinations of measures used to control access to those privileges). locking mechanisms, both on a computer systems and facilities. (vi) Maintenance records recurring basis and when personnel Physical safeguards must include all of (documentation of repairs and knowledgeable of combinations no the following requirements and modifications to the physical longer have a need to know or require implementation features: components of a facility, such as 43268 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules hardware, software, walls, doors, and based on attributes of the initiator or (2) [Reserved] locks). target)). (d) Technical security mechanisms (vii) Need-to-know procedures for (2) Role-based access. (processes that are put in place to guard personnel access (a security principle (3) User-based access. against unauthorized access to data that stating that a user should have access (C) The optional use of encryption. is transmitted over a communications only to the data he or she needs to (ii) Audit controls (mechanisms network). perform a particular function). employed to record and examine system (1) If an entity uses communications (viii) Procedures to sign in visitors activity). or network controls, its security and provide escorts, if appropriate (iii) Authorization control (the standards for technical security (formal documented procedure mechanism for obtaining consent for the mechanisms must include the governing the reception and hosting of use and disclosure of health following: visitors). information) that includes at least one of (i) The following implementation (ix) Testing and revision (the the following implementation features: features: restriction of program testing and (A) Role-based access. (A) Integrity controls (a security revision to formally authorized (B) User-based access. mechanism employed to ensure the personnel). (iv) Data authentication. (The validity of the information being (4) Policy and guidelines on work corroboration that data has not been electronically transmitted or stored). station use (documented instructions/ altered or destroyed in an unauthorized (B) Message authentication (ensuring, procedures delineating the proper manner. Examples of how data typically with a message authentication functions to be performed, the manner corroboration may be assured include code, that a message received (usually in which those functions are to be the use of a check sum, double keying, via a network) matches the message performed, and the physical attributes a message authentication code, or digital sent). of the surroundings of a specific signature.) (ii) One of the following computer terminal site or type of site, (v) Entity authentication (the implementation features: dependent upon the sensitivity of the corroboration that an entity is the one (A) Access controls (protection of information accessed from that site). claimed) that includes: sensitive communications transmissions (5) A secure work station location (A) Automatic logoff (a security over open or private networks so that (physical safeguards to eliminate or procedure that causes an electronic they cannot be easily intercepted and minimize the possibility of session to terminate after a interpreted by parties other than the unauthorized access to information; for predetermined time of inactivity, such intended recipient). example, locating a terminal used to as 15 minutes), and (B) Encryption. access sensitive information in a locked (B) Unique user identifier (a (2) If an entity uses network controls room and restricting access to that room combination name/number assigned (to protect sensitive communication that to authorized personnel, not placing a and maintained in security procedures is transmitted electronically over open terminal used to access patient for identifying and tracking individual networks so that it cannot be easily information in any area of a doctor’s user identity). intercepted and interpreted by parties office where the screen contents can be (C) At least one of the following other than the intended recipient), its viewed from the reception area). implementation features: technical security mechanisms must (6) Security awareness training (1) Biometric identification (an include all of the following (information security awareness training identification system that identifies a implementation features: programs in which all employees, human from a measurement of a (i) Alarm. (In communication systems, agents, and contractors must participate, physical feature or repeatable action of any device that can sense an abnormal including, based on job responsibilities, the individual (for example, hand condition within the system and customized education programs that geometry, retinal scan, iris scan, provide, either locally or remotely, a focus on issues regarding use of health fingerprint patterns, facial signal indicating the presence of the information and responsibilities characteristics, DNA sequence abnormality. The signal may be in any regarding confidentiality and security). characteristics, voice prints, and hand desired form ranging from a simple (c) Technical security services to written signature)). contact closure (or opening) to a time- guard data integrity, confidentiality, (2) Password. phased automatic shutdown and restart and availability (the processes that are (3) Personal identification number cycle.) put in place to protect information and (PIN) (a number or code assigned to an (ii) Audit trail (the data collected and to control individual access to individual and used to provide potentially used to facilitate a security information). These services include the verification of identity). audit). following requirements and (4) A telephone callback procedure (iii) Entity authentication (a implementation features: (method of authenticating the identity of communications or network mechanism (1) The technical security services the receiver and sender of information to irrefutably identify authorized users, must include all of the following through a series of ‘‘questions’’ and programs, and processes and to deny requirements and the specified ‘‘answers’’ sent back and forth access to unauthorized users, programs, implementation features: establishing the identity of each). For and processes). (i) Access control that includes: example, when the communicating (iv) Event reporting (a network (A) A procedure for emergency access systems exchange a series of message indicating operational (documented instructions for obtaining identification codes as part of the irregularities in physical elements of a necessary information during a crisis), initiation of a session to exchange network or a response to the occurrence and information, or when a host computer of a significant task, typically the (B) At least one of the following disconnects the initial session before the completion of a request for information). implementation features: authentication is complete, and the host (1) Context-based access (an access calls the user back to establish a session § 142.310 Electronic signature standard. control procedure based on the context at a predetermined telephone number. (a) General rule. If an entity elects to of a transaction (as opposed to being (5) Token. use an electronic signature in a Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43269 transaction as defined in § 142.103, or if the signer of a message, and of message signatures, signature attributes, and (if an electronic signature is required by a integrity, sufficient to prevent a party present) document attributes). transaction standard adopted by the from successfully denying the origin, Secretary, the entity must apply the submission, or delivery of the message § 142.312 Effective date of the initial implementation of the security and electronic signature standard described and the integrity of its contents). electronic signature standards. in paragraph (b) of this section to that (3) User authentication (the provision transaction. of assurance of the claimed identity of (a) General rules. (b) Standard. an entity). (1) Except for a small health plan (1) An electronic signature is the (d) Optional implementation features. (defined at § 142.103), each entity attribute affixed to an electronic If an entity uses electronic signatures, designated in § 142.302 must comply document to bind it to a particular the entity may also use, among others, with the requirements of this subpart by entity. An electronic signature secures any of the following implementation [24 months after the effective date of the the user authentication (proof of features: final rule in the Federal Register]. (1) Ability to add attributes (one claimed identity) at the time the (2) A delay in an effective date for possible capability of a digital signature signature is generated; creates the using a standard transaction described logical manifestation of signature technology; for example, the ability to add a time stamp as part of a digital in this part does not delay the effective (including the possibility for multiple dates described in paragraphs (a)(1) and parties to sign a document and have the signature). (2) Continuity of signature capability (b) of this section. order of application recognized and (the concept that the public verification (3) The requirements of the security proven); supplies additional of a signature must not compromise the standard may be implemented over information such as time stamp and ability of the signer to apply additional time. Implementation must be signature purpose specific to that user; secure signatures at a later date). completed by the applicable effective and ensures the integrity of the signed (3) Countersignatures. (The capability date. document to enable transportability of to prove the order of application of (b) Small health plans. A small health data, interoperability, independent signatures. This is analogous to the plan must comply with the verifiability, and continuity of signature normal business practice of requirements of this subpart by [36 capability. Verifying a signature on a countersignatures, where a party signs a months after the effective date of the document verifies the integrity of the document that has already been signed final rule in the Federal Register]. document and associated attributes and by another party.) verifies the identity of the signer. (4) Independent verifiability (the Authority: Sections 1173 and 1175 of the (2) The standard for electronic Social Security Act (42 U.S.C. 1320d–2 and capability to verify the signature 1320d–4). signature is a digital signature. A without the cooperation of the signer). ‘‘digital signature’’ is an electronic (5) Interoperability (the applications Dated: July 15, 1998. signature based upon cryptographic used on either side of a communication, Donna E. Shalala, methods of originator authentication, between trading partners and/or Secretary. computed by using a set of rules and a between internal components of an Note: The following appendix will not set of parameters so that the identity of entity, are able to read and correctly appear in the Code of Federal Regulations. the signer and the integrity of the data interpret the information communicated Addendum 1 can be verified. from one to the other). (c) Required implementation features. (6) Multiple signatures. (With this HIPAA Security Matrix If an entity uses electronic signatures, feature, multiple parties are able to sign Please Note: (1) While we have attempted the signature method must assure all of a document. Conceptually, multiple to categorize security requirements for ease of the following features: signatures are simply appended to the understanding and reading clarity, there are (1) Message integrity (the assurance of overlapping areas on the matrix in which the document.) same requirements are restated in a slightly unaltered transmission and receipt of a (7) Transportability of data (the ability different context. (2) To ensure that no message from the sender to the intended of a signed document to be transported Requirement or Implementation feature is recipient). over an insecure network to another considered more important than another, this (2) Nonrepudiation (strong and system, while maintaining the integrity matrix has been presented, within each substantial evidence of the identity of of the document, including content, subject area, in alphabetical order.

ADMINISTRATIVE PROCEDURES TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITY

Requirement Implementation

Certification Chain of trust partner agreement Contingency plan (all listed implementation features must be imple- Applications and data criticality analysis. mented). Data backup plan. Disaster recovery plan. Emergency mode operation plan. Testing and revision. Formal mechanism for processing records. Information access control (all listed implementation features must be Access authorization. implemented). Access establishment. Access modification. Internal audit 43270 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

ADMINISTRATIVE PROCEDURES TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITYÐContinued

Requirement Implementation

Personnel security (all listed implementation features must be imple- Assure supervision of maintenance personnel by authorized, knowl- mented). edgeable person. Maintainance of record of access authorizations. Operating, and in some cases, maintenance personnel have proper ac- cess authorization. Personnel clearance procedure. Personnel security policy/procedure. System users, including maintenance personnel, trained in security. Security configuration mgmt. (all listed implementation features must be Documentation. implemented). Hardware/software installation & maintenance review and testing for security features. Inventory. Security Testing. Virus checking. Security incident procedures (all listed implementation features must be Report procedures. implemented). Response procedures. Security management process (all listed implementation features must Risk analysis. be implemented). Risk management. Sanction policy. Security policy. Termination procedures (all listed implementation features must be im- Combination locks changed. plemented). Removal from access lists. Removal of user account(s). Turn in keys, token or cards that allow access. Training (all listed implementation features must be implemented) ...... Awareness training for all personnel (including mgmt). Periodic security reminders. User education concerning virus protection. User education in importance of monitoring log in success/failure, and how to report discrepancies. User education in password management.

PHYSICAL SAFEGUARDS TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITY

Requirement Implementation

Assigned security responsibility Media controls (all listed implementation features must be imple- Access control. mented). Accountability (tracking mechanism). Data backup. Data storage. Disposal. Physical access controls (limited access) (all listed implementation fea- Disaster recovery. tures must be implemented). Emergency mode operation. Equipment control (into and out of site). Facility security plan. Procedures for verifying access authorizations prior to physical access. Maintenance records. Need-to-know procedures for personnel access. Sign-in for visitors and escort, if appropriate. Testing and revision. Policy/guideline on work station use Secure work station location Security awareness training

TECHNICAL SECURITY SERVICES TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITY

Requirement Implementation

Access control (The following implementation feature must be imple- Context-based access. mented: Procedure for emergency access. In addition, at least one of Encryption. the following three implementation features must be implemented: Procedure for emergency access. Context-based access, Roll-based access, User-based access. The Role-based access. use of Encryption is optional). User-based access. Audit controls Authorization Control (At least one of the listed implementation features Role-based access. must be implemented). User-based access Data Authentication Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43271

TECHNICAL SECURITY SERVICES TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITYÐContinued

Requirement Implementation

Entity Authentication (The following implementation features must be Automatic logoff. implemented: Automatic logoff, Unique user identification. In addition, Biometric. at least one of the other listed implementation features must be im- Password. plemented). PIN. Telephone callback. Token. Unique user identification.

TECHNICAL SECURITY MECHANISMS TO GUARD AGAINST UNAUTHORIZED ACCESS TO DATA THAT IS TRANSMITTED OVER A COMMUNICATIONS NETWORK

Requirement Implementation

Communications/network controls (The following implementation features must be imple- Access controls. mented: Integrity controls, Message authentication. If communications or networking is em- Alarm. ployed, one of the following implementation features must be implemented: Access controls, Audit trail. Encryption. In addition, if using a network, the following four implementation features must be Encryption. implemented: Alarm, Audit trail, Entity authentication, Event reporting). Entity authentication. Event reporting. Integrity controls. Message authentication.

ELECTRONIC SIGNATURE

Requirement Implementation

Digital signature (If digital signature is employed, the following three im- Ability to add attributes. plementation features must be implemented: Message integrity, Non- Continuity of signature capability. repudiation, User authentication. Other implementation features are Counter signatures. optional). Independent verifiability. Interoperability. Message integrity. Multiple Signatures. Non-repudiation. Transportability. User authentication.

Addendum 2—HIPAA Security and restricting access to a user, terminal, entity’s initial right of access to a Electronic Signature Standards Glossary of transaction, program, or process. terminal, transaction, program, or Terms Part of information access control on the process. Please Note: matrix. Part of information access control on the (1) While we have attempted to categorize Access control: matrix. security requirements for ease of A method of restricting access to resources, Access Level: understanding and reading clarity, there are allowing only privileged entities access. A level associated with an individual who overlapping areas on the matrix in which the (PGP, Inc.) may be accessing information (for same requirements are restated in a slightly Types of access control include, among example, a clearance level) or with the different context. others, mandatory access control, information which may be accessed (for (2) While not appearing on the matrix, a discretionary access control, time-of-day, example, a classification level). (NRC, number of terms listed below do appear in classification, and subject-object 1991, as cited in HISB, DRAFT the glossary descriptions and have been separation. GLOSSARY OF TERMS RELATED TO supplied for additional clarity: Part of Media Controls on the matrix. INFORMATION SECURITY IN HEALTH (3) The definitions provided in this Part of technical security services to CARE INFORMATION SYSTEMS draft document have been obtained from multiple control and monitor access to Glossary of Terms Related to Information sources. information on the matrix. Security in Health Care Information Ability to add attributes: Access controls: Systems) One possible capability of a digital The protection of sensitive Access modification: signature technology, for example, the communications transmissions over The security policies, and the rules ability to add a time stamp as part of a open or private networks so that it established therein, that determine types digital signature. cannot be easily intercepted and of, and reasons for, modification to an Part of digital signature on the matrix. interpreted by parties other than the entity’s established right of access to a Access: intended recipient. terminal, transaction, program, or The ability or the means necessary to read, Part of mechanisms to prevent process. write, modify, or communicate data/ unauthorized access to data that is Part of information access control on the information or otherwise make use of transmitted over a communications matrix. any system resource. network on the matrix. Accountability: Access authorization: Access establishment: The property that ensures that the actions Information-use policies/procedures that The security policies, and the rules of an entity can be traced uniquely to establish the rules for granting and/or established therein, that determine an that entity. (ASTM E1762—95) 43272 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

Part of media controls on the matrix. One half of a key pair used in an partners. The sender and receiver Administrative procedures to guard data asymmetric (‘‘public-key’’) encryption depend upon each other to maintain the integrity, confidentiality and availability: system. Asymmetric encryption systems integrity and confidentiality of the Documented, formal practices to manage have two important properties: (1) the transmitted information. Multiple such (1) the selection and execution of key used for encryption is different from two-party contracts may be involved in security measures to protect data, and (2) the one used for decryption (2) neither moving information from the originator the conduct of personnel in relation to key can feasibly be derived from the to the ultimate recipient, for example, a the protection of data. other. (CORBA Security Services, 1997) provider may contract with a clearing A section of the matrix. Audit controls: house to transmit claims to the clearing Alarm, event reporting, and audit trail: The mechanisms employed to record and house; the clearing house, in turn, may (1) Alarm: In communication systems, any examine system activity. contract with another clearing house or device that can sense an abnormal Part of technical security services to with a payer for the further transmittal condition within the system and control and monitor access to of those same claims. provide, either locally or remotely, a information on the matrix. Part of administrative procedures to guard signal indicating the presence of the Authorization control: data integrity, confidentiality and abnormality. (188) NOTE: The signal The mechanism for obtaining consent for availability on the matrix.. may be in any desired form ranging from the use and disclosure of health Classification: a simple contact closure (or opening) to information. Protection of data from unauthorized a time-phased automatic shutdown and Part of technical security services to access by the designation of multiple restart cycle. (Glossary of INFOSEC and control and monitor access to levels of access authorization clearances INFOSEC Related Terms—Idaho State information on the matrix. to be required for access, dependent University) Automatic logoff: upon the sensitivity of the information. (2) Event reporting: Network message After a pre-determined time of inactivity A type of access control on the matrix. indicating operational irregularities in (for example, 15 minutes), an electronic Clearing House: physical elements of a network or a session is terminated. ** * a public or private entity that response to the occurrence of a Part of entity authentication on the matrix. processes or facilitates the processing of significant task, typically the completion Availability: nonstandard data elements of health of a request for information. (Glossary of The property of being accessible and information into standard data elements. INFOSEC and INFOSEC Related Terms— useable upon demand by an authorized (HIPAA, Subtitle F, Section 262(a) Idaho State University) entity. (ISO 7498–2, as cited in the HISB Section 1171(2)) (3) Audit trail: Data collected and draft Glossary of Terms Related to Combination locks changed: potentially used to facilitate a security Information Security In Health care Documented procedure for changing audit. (ISO 7498–2, as cited in HISB, Information Systems) combinations of locking mechanisms, DRAFT GLOSSARY OF TERMS Awareness training for all personnel both on a recurring basis and when RELATED TO INFORMATION (including management): personnel knowledgeable of SECURITY IN HEALTH CARE All personnel in an organization should combinations no longer have a need to INFORMATION SYSTEMS draft undergo security awareness training, know or a requirement for access to the Glossary of Terms Related to Information including, but not limited to, password protected facility/system. Security in Health Care Information maintenance, incident reporting, and an Part of termination procedures on the Systems) education concerning viruses and other matrix. Part of mechanisms to prevent forms of malicious software. Confidentiality: unauthorized access to data that is Part of Training on the matrix. The property that information is not made transmitted over a communications Biometric:. available or disclosed to unauthorized network on the matrix. A biometric identification system identifies individuals, entities or processes. (ISO Applications and data criticality analysis: a human from a measurement of a 7498–2, as cited in the HISB draft An entity’s formal assessment of the physical feature or repeatable action of Glossary of Terms Related to Information sensitivity, vulnerabilities, and security the individual (for example, hand Security In Health care Information of its programs and information it geometry, retinal scan, iris scan, Systems) . receives, manipulates, stores, and/or fingerprint patterns, facial Context-based access: transmits. characteristics, DNA sequence An access control based on the context of Part of contingency plan on the matrix. characteristics, voice prints, and hand a transaction (as opposed to being based Assigned security responsibility: written signature). (ASTM E1762—95, as on attributes of the initiator or target). Practices put in place by management to cited in the HISB draft Glossary of Terms The ‘‘external’’ factors might include manage and supervise (1) the execution Related to Information Security In Health time of day, location of the user, strength and use of security measures to protect care Information Systems) of user authentication, etc. data, and (2) the conduct of personnel in Part of entity authentication on the matrix. Part of access control on the matrix. relation to the protection of data. Certification: Contingency Plan: Part of Physical safeguards to guard data The technical evaluation performed as part A plan for responding to a system integrity, confidentiality, and availability of, and in support of, the accreditation emergency. The plan includes on the matrix. process that establishes the extent to performing backups, preparing critical Assure supervision of maintenance personnel which a particular computer system or facilities that can be used to facilitate by authorized, knowledgeable person: network design and implementation continuity of operations in the event of Documented formal procedures/instruction meet a pre-specified set of security an emergency, and recovering from a for the oversight of maintenance requirements. This evaluation may be disaster. (O’Reilly, 1992, as cited in the personnel when such personnel are in performed internally or by an external HISB draft Glossary of Terms Related to the vicinity of health information accrediting agency. Information Security In Health care pertaining to an individual. Part of administrative procedures to guard Information Systems) Contingency plans Part of personnel security on the matrix. data integrity, confidentiality, and should be updated routinely. Asymmetric encryption: availability. Part of Administrative procedures to guard Encryption and decryption performed Chain of Trust Partner Agreement: data integrity, confidentiality and using two different keys, one of which is Contract entered into by two business availability on the matrix. referred to as the public key and one of partners in which it is agreed to Continuity of signature capability: which is referred to as the private key. exchange data and that the first party The public verification of a signature shall Also known as public-key encryption. will transmit information to the second not compromise the ability of the signer (Stallings) party, where the data transmitted is to apply additional secure signatures at Asymmetric key: agreed to be protected between the a later date. (ASTM E 1762—95) Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43273

Part of digital signature on the matrix. in HISB, DRAFT GLOSSARY OF TERMS to Information Security In Health care Counter signatures: RELATED TO INFORMATION Information Systems) It shall be possible to prove the order of SECURITY IN HEALTH CARE Emergency mode operation: application of signatures. This is INFORMATION SYSTEMS draft Access controls in place that enable an analogous to the normal business Glossary of Terms Related to Information enterprise to continue to operate in the practice of countersignatures, where Security in Health Care Information event of fire, vandalism, natural disaster, some party signs a document which has Systems) or system failure. already been signed by another party. Part of contingency plan on the matrix. Part of physical access controls (limited (ASTM E 1762 -95) Discretionary access control: access) on the matrix. Part of digital signature on the matrix. Discretionary Access Control (DAC) is used Emergency mode operation plan: Data: to control access by restricting a subject’s Part of an overall contingency plan. The A sequence of symbols to which meaning access to an object. It is generally used plan for a process whereby an enterprise may be assigned. (NRC, 1991, as cited in to limit a user’s access to a file. In this would be able to continue to operate in the HISB draft Glossary of Terms Related type of access control it is the owner of the event of fire, vandalism, natural to Information Security In Health care the file who controls other users’ disaster, or system failure. Information Systems) accesses to the file. Part of contingency plan on the matrix. Data authentication: A type of access control on the matrix. The corroboration that data has not been Disposal: Encryption: altered or destroyed in an unauthorized The final disposition of electronic data, Transforming confidential plaintext into manner. Examples of how data and/or the hardware on which electronic ciphertext to protect it. Also called corroboration may be assured include data is stored. encipherment. An encryption algorithm the use of a check sum, double keying, Part of media controls on the matrix. combines plaintext with other values a message authentication code, or digital Documentation: called keys, or ciphers, so the data signature. Written security plans, rules, procedures, becomes unintelligible. Once encrypted, Part of technical security services to and instructions concerning all data can be stored or transmitted over control and monitor access to components of an entity’s security. unsecured lines. (EDI Security, Control, information on the matrix Part of security configuration mgmt on the and Audit) Data backup: matrix. Decrypting data reverses the encryption A retrievable, exact copy of information. Electronic data interchange (EDI): algorithm process and makes the Part of media controls on the matrix. Intercompany, computer-to-computer plaintext available for further processing. Data backup plan: transmission of business information in Part of access control on the matrix. A documented and routinely updated plan a standard format. For EDI purists, Entity authentication: to create and maintain, for a specific ‘‘computer-to-computer’’ means direct 1. The corroboration that an entity is the period of time, retrievable exact copies of transmission from the originating one claimed. (ISO 7498–2, as cited in the information. application program to the receiving, or HISB draft Glossary of Terms Related to Part of contingency plans on the matrix. processing, application program, and an Information Security In Health care Data Integrity: EDI transmission consists only of Information Systems) The property that dat has [sic] not been business data, not any accompanying Part of technical security services to altered or destroyed in an unauthorized verbiage or free-form messages. Purists control and monitor access to manner. (ASTM E1762–95). might also contend that a standard information on the matrix. Data storage: format is one that is approved by a 2. A communications/network mechanism The retention of health care information national or international standards to irrefutably identify authorized users, pertaining to an individual in an organization, as opposed to formats programs, and processes, and to deny electronic format. developed by industry groups or access to unauthorized users, programs Part of media controls on the matrix. companies. (EDI Security, Control, and and processes. Digital signature: Audit) Part of mechanisms to prevent An electronic signature based upon Electronic signature: unauthorized access to data that is cryptographic methods of originator The attribute that is affixed to an electronic transmitted over a communications authentication, computed by using a set document to bind it to a particular network on the matrix. of rules and a set of parameters such that entity. An electronic signature process Equipment control (into and out of site): the identity of the signer and the secures the user authentication (proof of Documented security procedures for integrity of the data can be verified. claimed identity, such as by biometrics bringing hardware and software into and (FDA Electronic Record; Electronic (fingerprints, retinal scans, hand written out of a facility and for maintaining a Signatures; Final Rule) signature verification, etc.), tokens or Part of electronic signature on the matrix. passwords) at the time the signature is record of that equipment. This includes, Disaster recovery: generated; creates the logical but is not limited to, the marking, The process whereby an enterprise would manifestation of signature (including the handling, and disposal of hardware and restore any loss of data in the event of possibility for multiple parties to sign a storage media. fire, vandalism, natural disaster, or document and have the order of Part of physical access controls (limited system failure. (CPRI, 1996c, as cited in application recognized and proven) and access) on the matrix. HISB, DRAFT GLOSSARY OF TERMS supplies additional information such as Facility security plan: RELATED TO INFORMATION time stamp and signature purpose A plan to safeguard the premises and SECURITY IN HEALTH CARE specific to that user; and ensures the building(s) (exterior and interior) from INFORMATION SYSTEMS draft integrity of the signed document to unauthorized physical access, and to Glossary of Terms Related to Information enable transportability, interoperability, safeguard the equipment therein from Security in Health Care Information independent verifiability, and continuity unauthorized physical access, tampering, Systems) of signature capability. Verifying a and theft. Part of physical access controls (limited signature on a document verifies the Part of physical access controls (limited access) on the matrix. integrity of the document and associated access) on the matrix. Disaster recovery plan: attributes and verifies the identity of the Formal mechanism for processing records: Part of an overall contingency plan. The signer. There are several technologies Documented policies and procedures for plan for a process whereby an enterprise available for user authentication, the routine, and non-routine, receipt, would restore any loss of data in the including passwords, cryptography, and manipulation, storage, dissemination, event of fire, vandalism, natural disaster, biometrics. (ASTM 1762–95, as cited in transmission, and/or disposal of health or system failure. (CPRI, 1996c, as cited the HISB draft Glossary of Terms Related information. 43274 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

Part of administrative procedures to guard of Terms Related to Information Security Information Security In Health care data integrity, confidentiality, and In Health care Information Systems) Information Systems) availability on the matrix. Maintenance of record of access Part of physical access controls (limited Hardware/software installation & authorizations: access) on the matrix. maintenance review and testing for Ongoing documentation and review of the Nonrepudiation: security features: levels of access granted to a user, Strong and substantial evidence of the Formal, documented procedures for (1) program, or procedure accessing health identity of the signer of a message and connecting and loading new equipment information. of message integrity, sufficient to prevent a party from successfully denying the and programs, (2) periodic review of the Part of personnel security on the matrix. Maintenance records: origin, submission or delivery of the maintenance occurring on that Documentation of repairs and message and the integrity of its contents. equipment and programs, and (3) modifications to the physical (ABA Digital Signature Guidelines) periodic security testing of the security components of a facility, for example, Part of digital signature on the matrix. attributes of that hardware/software. hardware, software, walls, doors, locks. Operating, and in some cases, maintenance Part of security configuration mgmt on the Part of physical access controls (limited personnel have proper access matrix. access) on the matrix. authorizations: Independent verifiability: Mandatory Access Control (MAC): Formal, documented policies and The capability to verify the signature A means of restricting access to objects that procedures to be followed in without the cooperation of the signer. is based on fixed security attributes determining the access level to be Technically, it is accomplished using the assigned to users and to files and other granted to individuals working on, or in public key of the signatory, and it is a objects. The controls are mandatory in the vicinity of, health information. property of all digital signatures the sense that they cannot be modified Part of personnel security on the matrix. Password: performed with asymmetric key by users or their programs. (Stallings, 1995) (as cited in the HISB draft Glossary Confidential authentication information encryption composed of a string of characters. (ISO Part of digital signature on the matrix. of Terms Related to Information Security In Health care Information Systems) 7498—2, as cited in the HISB draft Information: A type of access control on the matrix. Glossary of Terms Related to Information Data to which meaning is assigned, Media controls: Security In Health care Information according to context and assumed Formal, documented policies and Systems) conventions. (National Security Council, procedures that govern the receipt and Part of entity authentication on the matrix. 1991, as cited in the HISB draft Glossary removal of hardware/software (for Periodic security reminders: of Terms Related to Information Security example, diskettes, tapes) into and out of Employees, agents and contractors should In Health care Information Systems) a facility. be made aware of security concerns on an ongoing basis. Information access control: Part of physical safeguards to guard data Part of training on the matrix. Formal, documented policies and integrity, confidentiality, and availability Personnel clearance procedure: procedures for granting different levels on the matrix. A protective measure applied to determine of access to health care information. Message: that an individual’s access to sensitive Part of administrative procedures to ensure A digital representation of information. unclassified automated information is integrity and confidentiality on the (ABA Digital Signatures Guidelines) admissible. The need for and extent of a matrix. Message authentication: screening process is normally based on Integrity controls: Ensuring, typically with a message an assessment of risk, cost, benefit, and Security mechanism employed to ensure authentication code, that a message feasibility as well as other protective the validity of the information being received (usually via a network) matches measures in place. Effective screening electronically transmitted or stored. the message sent. (O’Reilly, 1992, as processes are applied in such a way as cited in the HISB draft Glossary of Terms Part of mechanisms to prevent to allow a range of implementation, from Related to Information Security In Health unauthorized access to data that is minimal procedures to more stringent care Information Systems) procedures commensurate with the transmitted over a communications Part of mechanisms to prevent network on the matrix. sensitivity of the data to be accessed and unauthorized access to data that is the magnitude of harm or loss that could Internal audit: transmitted over a communications The in-house review of the records of be caused by the individual (DOE network on the matrix 1360.2A, as cited in Glossary of system activity (for example, logins, file Message authentication code: INFOSEC and INFOSEC Related Terms— accesses, security incidents) maintained Data associated with an authenticated Idaho State University) by an organization. message that allows a receiver to verify Part of personnel security on the matrix. Part of administrative procedures to guard the integrity of the message. (Glossary of Personnel security: data integrity, confidentiality, and INFOSEC and INFOSEC Related Terms— The procedures established to ensure that availability on the matrix. Idaho State University) all personnel who have access to Interoperability: Message integrity: sensitive information have the required The applications used on either side of a The assurance of unaltered transmission authority as well as appropriate communication, between trading and receipt of a message from the sender clearances. (NCSC Glossary of Computer partners and/or between internal to the intended recipient. (ABA Digital Security Terms, October 21, 1988) components of an entity, being able to Signature Guidelines) Part of administrative procedures to guard read and correctly interpret the Part of digital signature on the matrix. data integrity, confidentiality and Multiple signatures: information communicated from one to availability on the matrix. It shall be possible for multiple parties to the other. Personnel security policy/procedure: sign a document. Multiple signatures are Part of digital signature on the matrix. Formal, documentation of policies and conceptually, simply appended to the procedures established to ensure that all Inventory: document. (ASTM E 1762–95) personnel who have access to sensitive Formal, documented identification of Part of digital signature on the matrix. information have the required authority hardware and software assets. Need-to-know procedures for personnel as well as appropriate clearances. Part of security configuration mgmt on the access: (Glossary of INFOSEC and INFOSEC matrix. A security principle stating that a user Related Terms—Idaho State University) Key: should have access only to the data he Part of personnel security on the matrix. An input that controls the transformation or she needs to perform a particular Physical access controls (limited access): of data by an encryption algorithm (NRC, function. (O’Reilly, 1992, as cited in the Those formal, documented policies and 1991, as cited in the HISB draft Glossary HISB draft Glossary of Terms Related to procedures to be followed to limit Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43275

physical access to an entity while The documented formal mechanism sensitive information in a locked room ensuring that properly authorized access employed to document security and restricting access to that room to is allowed. incidents. authorized personnel, not placing a Part of Physical safeguards to guard data Part of security incident procedures on the terminal used to access patient integrity, confidentiality, and availability matrix. information in any area of a doctor’s on the matrix. Response procedures: office where the screen contents can be Physical safeguards: The documented formal rules/instructions viewed from the reception area. Protection of physical computer systems for actions to be taken as a result of the Part of physical safeguards to guard data and related buildings and equipment receipt of a security incident report. integrity, confidentiality, and availability from fire and other natural and Part of security incident procedures on the on the matrix. environmental hazards, as well as from matrix. Security: intrusion. Also covers the use of locks, Risk analysis: Security encompasses all of the safeguards keys, and administrative measures used Risk analysis, a process whereby cost- in an information system, including to control access to computer systems effective security/control measures may hardware, software, personnel policies, and facilities. (O’Reilly, 1992, as cited in be selected by balancing the costs of information practice policies, disaster HISB, draft Glossary of Terms Related to various security/control measures preparedness, and the oversight of all Information Security in Health Care against the losses that would be expected Information Systems) these areas. The purpose of security is to if these measures were not in place. protect both the system and the A section of the matrix covering physical Part of the security management process on security requirements. information it contains from the matrix. unauthorized access from without and PIN (Personal Identification Number): Risk management: from misuse from within. A number or code assigned to an Risk is the possibility of something adverse Through various security measures, a individual and used to provide happening. Risk management is the health information system can shield verification of identity. process of assessing risk, taking steps to confidential information from Part of entity authentication on the matrix. reduce risk to an acceptable level and unauthorized access, disclosure and Policy/guideline on work station use: maintaining that level of risk. (NIST Pub. misuse, thus protecting privacy of the Documented instructions/procedures 800–14) individuals who are the subjects of the delineating the proper functions to be Part of the security management process on stored data. (Privacy and Health performed, the manner in which those the matrix. Information Systems: A Guide to functions are to be performed, and the Role-based access control: physical attributes of the surroundings, Protecting Patient Confidentiality) Role-based access control (RBAC) is an of a specific computer terminal site or alternative to traditional access control Security awareness training: type of site, dependant upon the models (e.g., discretionary or non- All employees, agents, and contractors sensitivity of the information accessed discretionary access control policies) must participate in information security from that site. awareness training programs. Based on Part of Physical safeguards to guard data that permits the specification and enforcement of enterprise-specific job responsibilities, individuals may be integrity, confidentiality, and availability required to attend customized education on the matrix. security policies in a way that maps more naturally to an organization’s programs that focus on issues regarding Procedure for emergency access: use of health information and Documented instructions for obtaining structure and business activities. With RBAC, rather than attempting to map an responsibilities regarding confidentiality necessary information during a crisis. and security. (ASTM) Part of access control on the matrix. organization’s security policy to a relatively low-level set of technical Part of Physical safeguards to guard data Procedures for verifying access integrity, confidentiality, and availability authorizations prior to physical access: controls (typically, access control lists), each user is assigned to one or more on the matrix. Formal, documented policies and Security configuration management: instructions for validating the access predefined roles, each of which has been assigned the various privileges needed to Measures, practices and procedures for the privileges of an entity prior to granting security of information systems should those privileges. perform that role. Part of access control on the matrix. be coordinated and integrated with each Part of physical access controls (limited other and other measures, practices and access) on the matrix. Part of authorization control on the matrix. procedures of the organization so as to Provider: Sanction policy: create a coherent system of security. A supplier of services as defined in section Organizations must have policies and (OECD Guidelines, as cited in NIST Pub 1861(u) of the HIPAA. procedures regarding disciplinary 800–14) A supplier of medical or other services as actions which are communicated to all defined in section 1861(s) of the HIPAA. employees, agents and contractors, for Part of administrative procedures to guard Public key: example, verbal warning, notice of data integrity, confidentiality, and One of the two keys used in an asymmetric disciplinary action placed in personnel availability on the matrix. encryption system. The public key is files, removal of system privileges, Security incident procedures: made public, to be used in conjunction termination of employment and contract Formal, documented instructions for with a corresponding private key. penalties (ASTM E 1869) reporting security breaches. [Stallings, 1995] In addition to enterprise sanctions, Part of administrative procedures to guard Removal from access lists: employees, agents, and contractors must data integrity, confidentiality and The physical eradication of an entity’s be advised of civil or criminal penalties availability on the matrix. access privileges. for misuse or misappropriation of health Security management process: Part of termination procedures on the information. Employees, agents and A security management process matrix. contractors, must be made aware that encompasses the creation, Removal of user account(s): violations may result in notification to administration and oversight of policies The termination or deletion of an law enforcement officials and regulatory, to ensure the prevention, detection, individual’s access privileges to the accreditation and licensure containment, and correction of security information, services, and resources for organizations. (ASTM) breaches. It involves risk analysis and which they currently have clearance, Part of the security management process on risk management, including the authorization, and need-to-know when the matrix. establishment of accountability, such clearance, authorization and need- Secure work station location: management controls (policies and to-know no longer exists. Physical safeguards to eliminate or education), electronic controls, physical Part of termination procedures on the minimize the possibility of unauthorized security, and penalties for the abuse and matrix. access to information, for example, misuse of its assets, both physical and Report procedures: locating a terminal used to access electronic. 43276 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

Part of administrative procedures to guard is transmitted over a communications Part of administrative procedures to guard data integrity, confidentiality and network, data integrity, confidentiality and availability on the matrix. A section of the matrix. availability on the matrix. Security policy: Technical security services: Transportability: The framework within which an The processes that are put in place (1) to A signed document can be transported organization establishes needed levels of protect information and (2) to control (over an insecure network) to another information security to achieve the and monitor individual access to system, while maintaining the integrity desired confidentiality goals. A policy is information. of the document. a statement of information values, A section of the matrix. Part of digital signature on the matrix. protection responsibilities, and Telephone callback: Turn in keys, token or cards that allow organization commitment for a system. A method of authenticating the identity of access: (OTA, 1993) The American Health the receiver and sender of information Formal, documented procedure to ensure Information Management Association through a series of ‘‘questions’’ and all physical items that allow a recommends that security policies apply ‘‘answers’’ sent back and forth terminated employee to access a to all employees, medical staff members, establishing the identity of each. For property, building, or equipment are volunteers, students, faculty, example, when the communicating retrieved from that employee, preferably independent contractors, and agents. systems exchange a series of prior to termination. (AHIMA, 1996c) (as cited in HISB, identification codes as part of the Part of termination procedures on the DRAFT GLOSSARY OF TERMS initiation of a session to exchange matrix. RELATED TO INFORMATION information, or when a host computer Unique user identification: SECURITY IN HEALTH CARE disconnects the initial session before the The combination name/number assigned INFORMATION SYSTEMS draft authentication is complete, and the host and maintained in security procedures Glossary of Terms Related to Information calls the user back to establish a session for identifying and tracking individual Security in Health Care Information at a predetermined telephone number. user identity. (ASTM) Systems ) Part of Entity authentication on the matrix. Part of Entity authentication on the matrix. Part of the security management process on Termination procedures: User authentication: the matrix Formal, documented instructions, which The provision of assurance of the claimed Security testing: include appropriate security measures, identity of an entity. (ASTM E1762–5) A process used to determine that the for the ending of an employee’s Part of digital signature on the matrix. security features of a system are employment, or an internal/external User-based access: implemented as designed and that they user’s access. A security mechanism used to grant users are adequate for a proposed applications Part of administrative procedures to guard of a system access based upon the environment. This process includes data integrity, confidentiality and identity of the user. hands-on functional testing, penetration availability on the matrix. Part of access control on the matrix. testing, and verification. (Glossary of INFOSEC and INFOSEC Related Terms— Testing and revision: Part of authorization control on the matrix. Idaho State University) (1) Testing and revision of contingency User education in importance of monitoring Part of security configuration mgmt on the plans refers to the documented process log in success/failure, and how to report matrix. of periodic testing to discover discrepancies: Sign-in for visitors and escort, if appropriate: weaknesses in such plans and the Training in the user’s responsibility to Formal, documented procedure governing subsequent process of revising the ensure the security of health care the reception and hosting of visitors. documentation if necessary. information. Part of physical access controls (limited Part of contingency plan on the matrix. Part of training on the matrix. access) on the matrix. (2) Testing and revision of programs User education concerning virus protection: Subject/object separation: should be restricted to formally Training relative to user awareness of the Access to a subject does not guarantee authorized personnel. potential harm that can be caused by a access to the objects associated with that Part of physical access controls (limited virus, how to prevent the introduction of subject. access) on the matrix. a virus to a computer system, and what Subject is defined as an active entity, Time-of-day: to do if a virus is detected. generally in the form of a person, Access to data is restricted to certain time Part of training on the matrix. process, or device that causes frames, e.g., Monday through Friday, User education in password management: information to flow among objects or 8:00 a.m. to 6:00 p.m. A type of user training in the rules to be changes the system state. Technically, a A type of access control on the matrix. followed in creating and changing process/domain pair. (Glossary of Time-stamp: passwords and the need to keep them INFOSEC and INFOSEC Related Terms— To create a notation that indicates, at least, confidential. Idaho State University) the correct date and time of an action, Part of training on the matrix. Object is defined as a passive entity that and the identity of the person that Virus checking: contains or receives information. Access created the notation. A computer program that identifies and to an object potentially implies access to Token: disables: the information it contains. Examples of A physical item that’s used to provide (1) another ‘‘virus’’ computer program, objects are: records blocks, pages, identity. Typically an electronic device typically hidden, that attaches itself to segments, files, directories, directory that can be inserted in a door or a other programs and has the ability to trees, and programs, as well as bits, computer system to obtain access. replicate. (Unchecked virus programs bytes, words, fields, processors, video (O’Reilly, 1992) (as cited in HISB, result in undesired side effects generally displays, keyboards, clocks, printers, DRAFT GLOSSARY OF TERMS unanticipated by the user.) network nodes, etc. (Glossary of RELATED TO INFORMATION (2) A type of programmed threat. A code INFOSEC and INFOSEC Related Terms— SECURITY IN HEALTH CARE fragment (not an independent program) Idaho State University) INFORMATION SYSTEMS draft that reproduces by attaching to another A type of access control. Glossary of Terms Related to Information program. It may damage data directly, or System users, including maintenance Security in Health Care Information it may degrade system performance by personnel, trained in security: Systems) taking over system resources which are See Awareness training (including Part of entity authentication on the matrix then not available to authorized users. management). Training: (O’Reilly, 1992, as cited in HISB, DRAFT Part of personnel security on the matrix. Education concerning the vulnerabilities of GLOSSARY OF TERMS RELATED TO Technical security mechanisms: the health information in an entity’s INFORMATION SECURITY IN HEALTH The processes that are put in place to guard possession and ways to ensure the CARE INFORMATION SYSTEMS draft against unauthorized access to data that protection of that information. Glossary of Terms Related to Information Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43277

Security in Health Care Information ISO International Organization for For the Record—Protecting Electronic Health Systems) Standardization Information, Computer Science and (3) Code embedded within a program that MAC Mandatory Access Control Telecommunications Board, NRC, causes a copy of itself to be inserted in NCSC National Computer Security Center National Academy Press, 2102 one or more other programs. In addition NCQA National Council for Quality Constitution Avenue, NW, Box 285, to propagation, the virus usually Assurance Washington, DC, 20055, 1997. performs some unwanted function. NCVHS National Committee on Vital and Glossary of INFOSEC and INFOSEC Related (Stallings, 1995, as cited in HISB, Health Statistics Terms, Version 6. Schou, Corey D., DRAFT GLOSSARY OF TERMS NUBC National Uniform Billing Committee Center for Decision Support, Idaho State RELATED TO INFORMATION NUCC National Uniform Claim Committee University. August, 1996 SECURITY IN HEALTH CARE PGP Pretty Good Privacy HISB, DRAFT GLOSSARY OF TERMS INFORMATION SYSTEMS draft PIN Personal Identification Number RELATED TO INFORMATION Glossary of Terms Related to Information NIST National Institutes of Standards and SECURITY IN HEALTH CARE Security in Health Care Information Technology INFORMATION SYSTEMS Glossary of Systems) SDO Standards Development Organization Terms Related to Information Security in Part of security configuration mgmt on the WEDI Workgroup for Electronic Data Health Care Information Systems draft, matrix. Interchange 1997 Acronyms NCSC, Glossary of Computer Security Terms, Bibliography ABA American Bar Association October 21, 1988. ADA American Dental Association ABA, Digital Signature Guidelines. NIST Pub 800–14, ‘‘Generally Accepted ANSI American National Standards ANSI, ASC X12.58, Security Structures, June, Principles and Practices for Securing Institute 1997. Information Technology Systems’’, AHIMA American Health Information ASTM, E1762–95, Standard Guide for Swanson, Marianne, & Guttman, Barbara, Management Association Electronic Authentication of Health Care September, 1996. PGP, Inc., Cryptology ASTM American Society for Testing and Information. ASTM Committee E–31 on Reference Chart, August, 1997 Materials Computerized Systems, Subcommittee Privacy and Health Information Systems: A CDT Center for Democracy & Technology E31.20 on Authentication. West Guide to Protecting Patient CEN Central European Nations Conshohocken, PA, October 10, 1995. Confidentiality, Goldman, Janlori & CORBA Common Object Request Broker ASTM, A Security Framework for Healthcare Mulligan, Deirdre, CDT, 1996. CPRI Computer-based Patient Record Information. ASTM Committee E–31 on Institute Computerized Systems, Subcommittee Addendum 3 DAC Discretionary Access Control E31.20 on Authentication. West HIPAA SECURITY MATRIX—mapping DEA Data Encryption Algorithm Conshohocken, PA, February 11, 1997. EDI Electronic Data Interchange EDI Security, Control, and Audit, Marcells, Please Note: While we have attempted to EHNAC Electronic Healthcare Network Albert J. & Chan, Sally. Artech House, categorize security requirements for ease of Accreditation Commission 685 Canton Street, Norwood, MA 01602, understanding and reading clarity, there are FDA Food and Drug Administration 1993. overlapping areas on the matrix in which the HISB Health Care Informatics Standards FDA, Electronic Record; Electronic same requirements are restated in a slightly Board Signatures; Final Rule. different context.

ADMINISTRATIVE PROCEDURES TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITY

Mapped Requirement Implementation standards

Certification ...... 47. Chain of trust partner agreement ...... 12, 47. Contingency plan (all listed implementation Applications and data criticality analysis ...... 17, 47, 53. features must be implemented). Data backup plan ...... 12, 17, 47. Disaster recovery plan ...... 12, 17, 47, 53. Emergency mode operation plan ...... 47, 53. Testing and revision ...... 12, 17, 47. Formal mechanism for processing records ...... 12, 17. Information access control (all listed implemen- Access authorization ...... 12, 17, 47, 53. tation features must be implemented). Access establishment ...... 17, 47, 53. Access modification ...... 12, 17, 47, 53. Internal audit ...... 12, 17, 43, 44, 47. Personnel security (all listed implementation Assure supervision of maintenance personnel 17, 47. features must be implemented) by authorized, knowledgeable person. Maintainance of record of access authoriza- 12, 17, 47. tions. Operating, and in some cases, maintenance 17, 47. personnel have proper access authorization. Personnel clearance procedure ...... 17, 47. Personnel security policy/procedure ...... 17, 47, 53. System users, including maintenance person- 12, 17, 47, 53. nel, trained in security. Security configuration mgmt. (all listed imple- Documentation ...... 12, 17, 47, 53. mentation features must be implemented). Hardware/software installation & maintenance 12, 17, 47. review and testing for security features. Inventory ...... 12, 17. Security testing ...... 12, 17, 47. Virus checking ...... 12, 17, 47, 53. Security incident procedures (all listed imple- Report procedures ...... 12, 17, 47. mentation features must be implemented). Response procedures ...... 17, 47. 43278 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

ADMINISTRATIVE PROCEDURES TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITYÐContinued

Mapped Requirement Implementation standards

Security management process (all listed imple- Risk analysis ...... 12, 17, 47, 53. mentation features must be implemented). Risk management ...... 17, 47. Sanction policy ...... 12, 17, 47, 53. Security policy ...... 17, 47, 53. Termination procedures (all listed implementa- Combination locks changed ...... 12, 17. tion features must be implemented). Removal from access lists ...... 12, 17, 47, 53. Removal of user account(s) ...... 12, 17, 47. Turn in keys, token or cards that allow access 12, 17, 47. Training (all listed implementation features Awareness training for all personnel (including 12, 17, 18, 47, 53. must be implemented). mgmt). Periodic security reminders ...... 12, 18. User education concerning virus protection ..... User education in importance of monitoring log 12, 17, 18. in success/failure, and how to report dis- crepancies. User education in password management ...... 12, 18, 47

PHYSICAL SAFEGUARDS TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITY

Requirement Implementation Mapped standards

Assigned security responsibility ...... 47. Media controls (all listed implementation fea- Access control ...... 17, 47, 53. tures must be implemented). Accountability (tracking mechanism) ...... 17, 18, 47. Data backup ...... 12, 17, 47, 53. Data storage ...... 12, 17, 47. Disposal ...... 17, 47, 53. Physical access controls (limited access) (all Disaster recovery ...... 17. listed implementation features must be im- Emergency mode operation ...... 17. plemented). Equipment control (into and out of site) ...... 17, 47. Facility security plan ...... 12, 17, 47. Procedures for verifying access authorizations 17, 18, 47. prior to physical access. Maintenance records ...... 17 Need-to-know procedures for personnel ac- 12, 17, 47, 53 cess. Sign-in for visitors and escort, if appropriate ... 17 Testing and revision ...... 17, 47 Policy/guideline on work station use ...... 18. Secure work station location ...... 17, 53. Security awareness training ...... 12, 17, 47.

TECHNICAL SECURITY SERVICES TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITY

Requirement Implementation Mapped standards

Access control (The following implementation Context-based access, ...... 5, 12, 14, 16, 17, 40, 47. feature must be implemented: Procedure for Encryption ...... 1, 6, 12, 14, 17, 21, 22, 23, 24, 26, 36, 28, 29, emergency access, In addition, at least one 30, 31, 47, 49, 53, 54, 55. of the following three implementation fea- Procedure for emergency access ...... 14, 17, 53. tures must be implemented: Context-based Roll-based access, ...... 14, 16, 17, 40, 41, 47, 53. access, Roll-based access, User-based ac- User-based access...... 11, 12, 14, 16, 17, 40, 41, 47, 53. cess. The use of Encryption is optional). Audit controls ...... 12, 14, 18, 47, 53. Authorization control (At least one of the listed Role-based access ...... 5, 14, 16, 17, 47, 53. implementation features must be imple- User-based access ...... 14, 16, 47, 53. mented). Data authentication ...... 11, 53. Entity Authentication (The following implemen- Automatic logoff ...... 14, 16, 17, 18, 40, 53 tation features must be implemented: Auto- Biometric ...... 14, 16, 18, 40, 47, 53. matic logoff, Unique user identification. In Password ...... 14, 16, 17, 18, 19, 40, 47, 53. addition, at least one of the other listed im- PIN ...... 14, 16, 18, 19, 40, 47. plementation features must be implemented). Telephone callback ...... 14, 17, 18, 47, 53. Token ...... 14, 17, 47, 50, 53. Unique user identification ...... 14, 47, 53. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules 43279

TECHNICAL SECURITY MECHANISMS TO GUARD DATA INTEGRITY, CONFIDENTIALITY, AND AVAILABILITY

Requirement Implementation Mapped standards

Communications/network controls (If commu- Access controls ...... 14, 17, 22, 23, 39, 47, 48, 53. nications or networking is employed, the fol- Alarm, event reporting, and audit trail ...... 14, 17, 18, 35, 36, 37, 38, 44. lowing implementation features must be im- Audit trail plemented: Integrity controls, Message au- Encryption ...... 1, 6, 12, 14, 17, 21, 22, 23, 24, 26, 27, 28, 29, thentication. In addition, one of the following 30, 31, 47, 49, 52, 53. implementation features must be imple- Entity authentication ...... 12, 14, 17, 18, 20, 22, 23, 31, 32, 33, 34, 51, mented: Access controls, Encryption. In ad- 53. dition, if using a network, the following four Event reporting implementation features must be imple- Integrity controls ...... 14, 15, 17, 18, 22, 23, 45, 46. mented: Alarm, Audit trail, Entity authentica- Message authentication ...... 14, 15, 17, 18, 22, 23, 25, 45, 46, 52. tion, Event reporting).

ELECTRONIC SIGNATURE

Requirement Implementation Mapped standards

Digital signature (If digital signature is em- Ability to add attributes ...... 3, 4, 10, 11, 13, 20 ployed, the following three implementation Continuity of signature capability ...... 3, 4, 11, 13, 14, 18 features must be implemented: Message in- Counter signatures ...... 3, 4, 10, 11, 13, 14, 18 tegrity, Non-repudiation, User authentication. Independent verifiability ...... 3, 4, 11, 13, 20 Other implementation features are optional). Interoperability ...... 3, 4, 7, 8, 9, 13, 14, 48 Message integrity ...... 3, 4, 10, 11, 13, 14, 18 Multiple signatures ...... 3, 4, 10, 11, 13, 20 Non-repudiation ...... 2, 3, 4, 10, 11, 13, 14, 42 Transportability ...... 3, 4, 11, 13, 14, 18 User authentication ...... 3, 4, 10, 11, 13, 20

Mapped Standards 19. FIPS PUB 112—Password Usage 36. ISO/IEC 10164–5—Information 1. ANSI X3.92—Data Encryption Standard 20. FIPS PUB 196—Entity Authentication Technology—Open Systems Connection— 2. ANSI X9.30—Part 1: Public Key Using Public Key Cryptography System Management: Event Report Cryptography Using Irreversible 21. FIPS PUB 46–2—Data Encryption Management Function Algorithms: Digital Signature Algorithm Standard 37. ISO/IEC 10164–7—Information 3. ANSI X9.30—Part 2: Public Key 22. IEEE 802.10: Interoperable LAN/MAN Technology—Open Systems Connection— Security (SILS), 1992–1996 (multiple parts) Cryptography Using Irreversible System Management: Security Alarm 23. IEEE 802.10c—LAN/WAN Security—Key Algorithms: Secure Hash Algorithm (SHA– Reporting Function 1) Management 38. ISO/IEC 10164–8—Information 4. ANSI X9.31—Reversible Digital Signature 24. IETF ID—Combined SSL/PCT Transport Algorithms Layer Security Protocol Technology—Open Systems Connection— 5. ANSI X9.45—Enhanced Management 25. IETF ID—FTP Authentication Using DSA System Management: Security Audit Trail Controls Using Digital Signatures and 26. IETF ID—Secure HyperText TP Protocol Function Attribute Certificates (S–HTTP) 39. ISO/IEC 10164–9—Information 6. ANSI X9.52—Triple DES Modes of 27. IETF ID—SMIME Cert Handling Technology—Open Systems Connection— Operation 28. IETF ID—SMIME Message Specification System Management: Objects and 7. ANSI X9.55—Extensions to Public Key 29. IETF RFC 1422—Privacy Enhanced Mail: Attributes for Access Control Certificates and CRLs Part 1: Message Encryption and 40. ISO/IEC 10181–2—Information 8. ANSI X9.57—Certificate Management Authentication Procedures Technology—Security Frameworks in 9. ANSI X9.62—Elliptic Curve Digital 30. IETF RFC 1424—Privacy Enhanced Mail: Open Systems—Authentication Framework Signature Algorithm (draft) Part 2: Certificate-Based Key Management 41. ISO/IEC 10181–3—Information 10. ANSI X12.58—Security Structures 31. IETF RFC 1423—Privacy Enhanced Mail: (version 2) Part 3: Algorithms, Modes, and Identifiers Technology—Security Frameworks in 11. ASTM E 1762—Standard Guide for 32. ISO/IEC 9798–1: Information Open Systems—Access Control Framework Authentication of Healthcare Information Technology—Security Techniques—Entity 42. ISO/IEC 10181–4—Information 12. ASTM E 1869—Draft Standard for Authentication Mechanisms—Part 1: Technology—Security Frameworks in Confidentiality, Privacy, Access and Data General Model Open Systems—Non-repudiation Security Principles 33. ISO/IEC 9798–2: Information Framework 13. ASTM PS 100–97—Standard Technology—Security Techniques—Entity 43. ISO/IEC 10181–5—Information Specification for Authentication of Authentication Mechanisms—Part 2: Entity Technology—Security Frameworks in Healthcare Information Using Digital Authentication Using Asymmetric Open Systems—Confidentiality Framework Signatures Techniques 44. ISO/IEC 10181–7—Information 14. ASTM PS 101–97—Security Framework 34. ISO/IEC 9798–2: Information Technology—Security Frameworks in for Healthcare Information Technology—Security Techniques—Entity 15. ASTM PS 102–97—Standard Guide for Authentication Mechanisms—Part 2: Entity Open Systems—Security Audit Framework Internet and Intranet Security Authentication Using Symmetric 45. ISO/IEC 10736—Information 16. ASTM PS 103–97 Authentication & Techniques Technology—Telecommunications and Authorization Guideline 35. ISO/IEC 10164–4—Information Information Exchange Between Systems— 17. CEN—European Pre-Standard Technology—Open Systems Connection— Transport Layer Security Protocol (TLSP) 18. FDA—Electronic Records—Electronic System Management: Alarm Reporting Signatures—Final Rule Function 43280 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Proposed Rules

46. ISO/IEC 11577—Information Technology—Telecommunications and Information Exchange Between Systems— Network Layer Security Protocol (NLSP) 47. NIST—Generally Accepted Principles and Practices for Secure Information Technology Systems 48. NIST MISPC—Minimum Interoperability Specification for PKI Components Version 1 49. PKCS #7—Cryptographic Message Syntax Standard Version 1.5 or later 50. PKCS #11—Cryptoki B A Cryptographic Token Interface 51. RFC 1510—Kerberos Authentication Service 52. RFC 2104—HMAC:Keyed-Hashing for Message Authentication 53. For the Record—Protecting Electronic Health Information 54. ANSI X9.42—Management of Symmetric Keys Using Diffie-Hellman 55. ANSI X9.44—Key Transport Using RSA [FR Doc. 98–21601 Filed 8–7–98; 1:23 pm] BILLING CODE 4120±01±P federal register August 12,1998 Wednesday Rotorcraft Regulations;FinalRule Harmonization ofMiscellaneous 14 CFRParts27and29 Federal AviationAdministration Transportation Department of Part IV 43281 43282 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION identify the amendment number of On January 9, 1996, the Miscellaneous docket number of this final rule. Harmonization Working Group Federal Aviation Administration Persons interested in being placed on submitted recommendations to the the mailing list for future Notices of ARAC concerning the need (1) to 14 CFR Parts 27 and 29 Proposed Rulemaking (NRPMs) and provide a cockpit indication of autopilot [Docket No. 28929; Amendment Nos. 27± Final Rules should request from the operating mode to the pilots for certain 35 & 29±42] above office a copy of Advisory Circular autopilot configurations, (2) to clarify the burn test requirements for electrical RIN 2120±AG23 No. 11–2A, NPRM Distribution System, that describes the application wiring for transport category rotorcraft, Harmonization of Miscellaneous procedure. (3) to provide a new requirement for an Rotorcraft Regulations electrical wire burn test for normal Small Entity Inquiries category rotorcraft, and (4) to add a 1.33 AGENCY: Federal Aviation The Small Business Regulatory fitting factor structural strength Administration (FAA), DOT. Enforcement Fairness Act of 1996 requirement to the attachment of litters ACTION: Final rule. (SBREFA) requires the FAA to report and berths. The working group also inquiries from small entities concerning submitted recommendations to ARAC SUMMARY: The FAA is amending the information on, and advice about, concerning the disharmonizations airworthiness standards for normal and compliance with statutes and introduced by the new Rotorcraft 30 transport category rotorcraft. The regulations within the FAA’s Second/2 Minute One-Engine changes amend the airworthiness jurisdiction, including interpretation Inoperative Power Ratings (OEI) (59 FR standards to require a cockpit indication and application of the law to specific 47764; September 16, 1994) and the of autopilot operating mode to the pilots sets of facts supplied by a small entity. Crash Resistant Fuel Systems (CRFS) in for certain autopilot configurations, to If you are a small entity and have a Normal and Transport Category clarify the burn test requirements for question, contact your local FAA Rotorcraft (59 FR 50380; October 3, electrical wiring for transport category official. If you do not know how to 1994) final rules. The ARAC reviewed the working rotorcraft, and to provide a new contact your local FAA official, you may group recommendations and requirement for an electrical wire burn contact Charlene Brown, Program test for normal category rotorcraft. The subsequently recommended that the Analyst Staff, Office of Rulemaking, FAA revise the airworthiness standards rule also adds a 1.33 fitting factor ARM–27, Federal Aviation structural strength requirement to the for normal and transport category Administration, 800 Independence rotorcraft to incorporate the attachment of litters and berths. Avenue, SW., Washington, DC 20591, EFFECTIVE DATE: September 11, 1998. miscellaneous changes. The changes to 1–888–551–1594. Internet users can find 14 CFR parts 27 and 29 (parts 27 and 29) FOR FURTHER INFORMATION CONTACT: additional information on SBREFA in are harmonized with the European Joint Carroll Wright, Regulations Group, the ‘‘Quick Jump’’ section of the FAA’s Aviation Requirements (JAR) 27 and 29. Rotorcraft Directorate, Aircraft web page at http://www.faa.gov and The FAA evaluated the ARAC Certification Service, FAA, Worth, may send electronic inquiries to the recommendations and made its Texas 76193–0111, telephone number following internet address: 9–AWA– proposals in NPRM 97–8. The FAA (817) 222–5120, fax (817) 222–5961. [email protected]. received two comments to the proposed SUPPLEMENTARY INFORMATION: Background miscellaneous changes. Availability of Final Rules These amendments are based on Discussion of Comments Using a moderm and suitable NPRM No. 97–8 published in the Interested persons have been afforded communications software, an electronic Federal Register on June 9, 1997 (62 FR an opportunity to participate in the copy of this document may be 31475). That notice proposed to amend making of these amendments. Due downloaded from the FAA regulations the airworthiness standards for both consideration was given to the section of the Fedworld electronic normal and transport category rotorcraft comments received from the two bulletin board service (telephone: 703– based on recommendations from the commenters. One commenter 321–3339), the Federal Register’s ARAC. By announcement in the Federal representing HAI was fully supportive electronic bulletin board service Register (60 FR 4221, January 20, 1995), of the proposed changes. (telephone: 202–512–1661), or the the ‘‘Harmonization of Miscellaneous Another commenter recommended FAA’s Aviation Rulemaking Advisory Rotorcraft Regulations Working Group’’ changes to the proposed part 27 Committee (ARAC) Bulletin Board was chartered by the ARAC. The electrical wire burn test requirements. service (telephone: 800–322–2722 or working group included representatives This commenter does not believe self- 202–267–5948). from the major rotorcraft manufacturers extinguishing wire is required for low Internet users may reach the FAA’s (normal and transport) and amperage installation and requested the web page at http://www.faa.gov/avr/ representatives from Aerospace following wording be added to arm/nprm/nprm/htm or the Federal Industries Association of America, Inc. § 27.1365: ‘‘* * * To require self- Register webpage at http:// (AIA), Association Europeene des extinguishing installation of electrical www.access.gpo.gov/suldocs/aces/ Constructeurs de Material Aerospatial wire and cable larger than 18 gauge and aces 140.html for access to recently (AECMA), Helicopter Association carrying current draws of over 5 amps published rulemaking documents. International (HAI), Joint Aviation per wire. Multi-strand cable with over 4 Any person may obtain a coy of this Authorities (JAA), and the Federal strands in a closed cable sheave are final rule by submitting a request to the Aviation Administration (FAA) exempt from this requirement * * *’’ Federal Aviation Administration, Office Rotorcraft Directorate. This broad The FAA does not agree to exempt of Rulemaking, ARM–1, 800 participation is consistent with FAA multi-strand wires or 18 gauge wires or Independence Avenue, SW., policy to have all known interested smaller. Any wire, regardless of size or Washington, DC 20591, or by calling parties involved as early as practicable number of strands, may constitute a fire 202–267–9680. Communications must in the rulemaking process. hazard. Small gauge wires may be Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43283 routed in wire bundles with larger gauge Economic Evaluation Most U.S. and European wires. Any fire in the wire bundle manufacturers currently use electrical would be fueled by nonself- The revisions will impose no wire that meets the burn test extinguishing wire and thereby defeat incremental costs on the larger requirements for transport category the purpose of the rule. manufacturers that produce both part 27 rotorcraft since they produce both parts After considering all of the comments, and 29 rotorcraft. For smaller 27 and 29 rotocraft. However, the few the FAA has determined that air safety manufacturers producing only part 27 manufacturers that produce normal and the public interest require adoption rotorcraft, there will be incremental category rotorcraft only will likely of the amendments are proposed. costs totalling approximately $60,000 experience additional costs. One (nondiscounted 1997 dollars) per type Paperwork Reduction Act manufacturer estimates additional certification. For some manufacturers of nonrecurring testing/design costs at In accordance with the Paperwork specialized equipment in part 27 $5,300 per type certification and Reduction Act of 1995 (44 U.S.C. rotorcraft, incremental cost could equal additional wiring costs of $530 per § 3507(d)), there are no requirements for an additional $500 per rotorcraft. rotorcraft. At an estimated production of information collection associated with Overall, the changes will increase safety seven rotorcraft per year, the this final use. and promote harmonization between incremental recurring costs will total FAA and JAA regulations. International Compatibility $3,710 per year for ten years, or $37,100 Harmonization will eliminate total (nondiscounted 1997 dollars), The FAA has determined that a unnecessary duplication of certification under one type certification. Another review of the Convention on requirements (e.g., testing/design), thus manufacturer estimates additional International Civil Aviation Standards reducing manufacturers’ costs. wiring costs of $370 per rotorcraft and and Recommended Practices is not The costs and benefits of the changes no additional nonrecurring costs. At an warranted because there is not a regarding the fitting factor for berths and estimated production of 20 rotorcraft comparable rule under International litters, removal of the phrase ‘‘unless a per year, the incremental recurring costs Civil Aviation Organization (ICAO) rollover is shown to be extremely will total $7,400 per year ten years, or standards. remote’’ (in §§ 27.975(b) and $74,000 total (nondiscounted 1997 Regulatory Evaluation Summary 29.975(a)(7)), autopilot operating mode, dollars), under one type certification. and burn test for electrical wire in Averaging the incremental costs for Proposed changes to Federal normal category rotorcraft are these two manufacturers results in an regulations must undergo several summarized below. All other revisions estimate of approximately $58,200 per economic analyses. First, Executive involve minor clarifications or type certification (135 units produced at Order 12866 directs that each Federal administrative changes. approximately $430 per unit). agency shall propose or adopt a Part 27 rotorcraft which will be used regulation only upon a reasoned The fitting factor requirement will not impose incremental costs on most in specialized operations may require determination that the benefits of the somewhat more expensive wiring to intended regulation justify its costs. rotorcraft manufacturers. One small manufacturer of part 27 rotorcraft meet the new burn test requirements. Second, the Regulatory Flexibility Act The second commenter to the notice of 1980 (RFA) requires agencies to indicated additional nonrecurring testing and analysis costs of $2,100 to alluded to earlier (a manufacturer of analyze the economic impact of fire-fighting systems) indicates that regulatory changes on small entities. substantiate the 1.33 factor in an initial new type certification; most likely, this meeting the new standards will result in Third, the Office of Management and a 5 percent increase in the selling price Budget directs agencies to assess the additional cost will not be incurred in subsequent type certification. Although of its system, or $900 per unit. A effects of regulatory changes on manufacturer of agricultural spraying international trade. And fourth, the there have been no identifiable accidents involving litters attributable to systems, however, indicates increased Unfunded Mandates Reform Act of 1995 per system costs of only a fraction of (Pub. L. 104–4) requires agencies to insufficient attachment strength, even one minor injury will far exceed the one percent, equating to $100 per unit. prepare a written assessment of the Since both of these systems represent costs, benefits, and other effects of relatively low costs. Codification of the 1.33 fitting factor, which is inherent in the type of add-on electrical system proposed or final rules that include a potentially affected by the wiring Federal mandate likely to result in the most current designs, will ensure that all future designs include this standard, provision, using the average of the two expenditure by State, local, or tribal estimates, or $500, is appropriate. increasing the minimum level of safety. governments, in the aggregate, or by the Assuming 20 of the new production private sector, of $100 million or more There will be no incremental costs or rotorcraft (about 15%) will be equipped annually (adjusted for inflation). In benefits associated with removal of the with the add-on systems, the additional conducting these analyses, the FAA has phrase ‘‘unless a rollover is shown to be incremental costs total $10,000. determined that this rule: (1) will extremely remote’’ in §§ 27.975(b) and Examination of National generate benefits that justify its costs 29.975(a)(7) since rotorcraft currently Transportation Safety Board accident and is not a ‘‘significant regulatory meet the minimum fuel spillage data for the period 1983 through 1995 action’’ as defined in the Executive requirements of these sections. indicates several rotorcraft accidents Order; (2) is not ‘‘significant’’ as defined The autopilot display requirement and incidents in which the electrical as DOT’s Regulatory Policies and will not impose any incremental costs system was cited as a cause or Procedures; (3) will not have a on rotorcraft manufacturers since new contribute factor. One accident (in June significant impact on a substantial autopilot systems employed in rotorcraft 1994) was primarily caused by an number of small entities; (4) will lessen are identical to those in airplanes and electrical short in the wiring which restraints on international trade; and (5) the mode indicator in now integral to burned a hole in the main fuel line, does not contain a significant such system. Codification of this causing a post-impact fire that destroyed intergovernmental or private sector requirement will ensure that all future the part 27 helicopter. The FAA believes mandate. These analyses, available in rotorcraft designs comply with this that the revised burn test requirements the docket, are summarized below. standard. could have prevented this accident. If 43284 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations the rule prevents one such accident providing the factual basis for this Aviation Regulations with the European during the operating lives (25-years) of determination, and the reasoning should Joint Aviation Requirements. The result rotorcraft produced under one part 27 be clear. will be a positive step toward removing type certification, the rule will be cost- For manufacturers, a small entity is impediments to international trade. beneficial: Replacement costs of a one with 1,500 or fewer employees. Federalism Implications substantially-damaged rotorcraft equals Only five rotorcraft have 1,500 or fewer $125,000 (this benefit alone will exceed employees and therefore qualify as The regulations herein will not have the total costs of approximately small entities. However, three of these substantial direct effects on the states, $70,000); adding cumulative damage are not currently producing new type- on the relationship between the national from two or three minor incidents (say certificated rotocraft, and another does government and the states, or on the $20,000 to $30,000) and potential not compete with the larger distribution of power and harmonization cost savings ($50,000, manufacturers. Consequently, only one responsibilities among the various based on estimates from previous producer could potentially be impacted levels of government. Therefore, in harmonized rotorcraft rules) increases by this rule. However the annualized accordance with Executive Order 12612, the benefits to approximately $200,000, increased certification costs for a it is determined that this rule will not which is almost three times the costs. If rotorcraft manufacturer (based on the have sufficient federalism implications one serious injury (valued at over average incremental costs of the wiring to warrant the preparation of a $500,000) is prevented, the benefits of requirements as reported by the two Federalism Assessment. the rule would be several times the manufacturers, added to the costs to estimated costs. comply with the fitting factor Unfunded Mandates Assessment In addition, codification of those requirements) equals approximately Title II of the Unfunded Mandates requirements complied with indirectly $4,400 per type certification, which is Reform Act of 1995 (the Act), enacted as (i.e., as a result of complying with other not considered significant within the Pub. L. 104–4 on March 22, 1995, provisions) or ‘‘voluntarily’’ (by virture meaning of the RFA. Consequently, the requires each Federal agency, to the of competitive pressures) will ensure FAA certifies that the rule will not have extent permitted by law, to prepare a continuation of enhanced safety levels a significant economic impact on a written assessment of the effects of any in future rotorcraft designs. substantial number of small rotorcraft Federal mandate in a proposed or final Based on the findings of no significant manufacturers. agency rule that may result in the incremental costs coupled with the The two manufacturers of specialized expenditure by State, local, and tribal benefits of harmonization savings and component systems described earlier are government, in the aggregate, or by the higher levels of safety, the FAA has also small entities; notwithstanding, the private sector, of $100 million or more determined that the rule will be cost- average $500 incremental cost can easily (adjusted annually for inflation) in any beneficial. be passed on to purchasers given the one year. Section 204(a) of the Act, 2 inelastic demand for such specialized Regulatory Flexibility Determination U.S.C. 1534(a), requires the Federal rotorcraft systems. There is not a agency to develop an effective process The Regulatory Flexibility Act of 1980 substantial number of other rotorcraft to permit timely input by elected (RFA) establishes ‘‘as a principle of systems. There is not a substantial officers (or their designees) of State, regulatory issuance that agencies shall number of other rotorcraft parts local, and tribal governments on a endeavor, consistent with the objective manufacturers that will be impacted by proposed ‘‘significant intergovernmental of the rule and of applicable statutes, to this rule. Consequently, the FAA mandate.’’ A ‘‘significant fit regulatory and informational certifies that the rule will not have a intergovernmental mandate’’ under the requirements to the scale of the significant economic impact on a Act is any provision in a Federal agency business, organizations, and substantial number of small rotorcraft regulation that will impose an governmental jurisdictions subject to parts manufacturers. regulation.’’ To achieve that principle, enforceable duty upon State, local, and the Act requires agencies to solicit and International Trade Impact Assessment tribal governments, in the aggregate, of consider flexible regulatory proposals Consistent with the Administration’s $100 million (adjusted annually for and to explain the rationale for their belief in the general superiority, inflation) in any one year. Section 203 actions. The Act covers a wide-range of desirability, and efficacy of free trade, it of the Act, 2 U.S.C. 1533, which small entities, including small is the policy of the Administrator to supplements section 204(a), provides businesses, not-for-profit organizations remove or diminish, to the extent that before establishing any regulatory and small governmental jurisdictions. feasible, barriers to international trade, requirements that might significantly or Agencies must perform a review to including both barriers affecting the uniquely affect small governments, the determine whether a proposed or final export of American goods and services agency shall have developed a plan that, rule will significant economic impact on to foreign countries and those affecting among other things, provides for notice a substantial number of small entities. If the import of foreign goods and services to potentially affected small the determination is that it will, the into the United States. governments, if any, and for a agency must prepare a regulatory In accordance with that policy, the meaningful and timely opportunity to flexibility analysis as described in the FAA is committed to develop as much provide input in the development of Act. as possible its aviation standards and regulatory proposals. However, if an agency determines that practices in harmony with its trading The FAA determined that this rule a proposed or final rule is not expected partners. Significant cost savings can does not contain a significant to have a significant economic impact result from this, both to American intergovernmental or private sector on a substantial number of small companies doing business in foreign mandate as defined by the Act. entities, section 605(b) of the 1980 act markets, and foreign companies doing List of Subjects in 14 CFR Parts 27 and provides that the head of the agency business in the United States. 29 may so certify and a regulatory This rule is a direct action to respond flexibility analysis is not required. The to this policy by increasing the Air transportation, Aircraft, Aviation certification must include a statement harmonization of the U.S. Federal safety, Rotorcraft, Safety. Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Rules and Regulations 43285

The Amendments equipment, means must be provided to § 29.923 [Amended] Accordingly, the FAA amends 14 CFR indicate to the pilots the current mode 10. In § 29.923(a), the first sentence of parts 27 and 29 as follows: of operation. Selector switch position is the introductory text is amended adding not acceptable as a means of indication. the phrase ‘‘and (p)’’ immediately PART 27ÐAIRWORTHINESS 6. In § 27.1365, a new paragraph (c) is following the reference to paragraph STANDARDS: NORMAL CATEGORY added to read as follows: ‘‘(n)’’. ROTORCRAFT § 27.1365 Electric cables. § 29.975 [Amended] 1. The authority citation for part 27 * * * * * continues to read as follows: 11. In § 29.975, paragraph (a)(7) is (c) Insulation on electrical wire and amended by removing the words ‘‘, Authority: 49 U.S.C. 106(g), 40113, 44701– cable installed in the rotorcraft must be 44702, 44704. unless a rollover is shown to be self-extinguishing when tested in extremely remote’’. 2. In § 27.625, a new paragraph (d) is accordance with Appendix F, Part 12. In § 29.1329, a new paragraph (f) added to read as follows: I(a)(3), of part 25 of this chapter. is added to read as follows: § 27.625 Fitting factors. PART 29ÐAIRWORTHINESS § 29.1329 Automatic pilot system. * * * * * STANDARDS:TRANSPORT * * * * * (d) Each seat, berth, litter, safety belt, CATEGORY ROTORCRAFT and harness attachment to the structure (f) If the automatic pilot system can be must be shown by analysis, tests, or 7. The authority citation for part 29 coupled to airborne navigation both, to be able to withstand the inertia continues to read as follows: equipment, means must be provided to forces prescribed in § 27.561(b)(3) Authority: 49 U.S.C. 106(g), 40113, 44701– indicate to the pilots the current mode multiplied by a fitting factor of 1.33. 44702, 44704. of operation. Selector switch position is 3. Section 27.785 is amended by not acceptable as a means of indication. 8. In § 29.625, a new paragraph (d) is revising the heading and by adding a 13. In § 29.1351, paragraph (d)(1)(iii) added to read as follows: new sentence to the end of paragraph is removed. (k)(2) to read as follows: § 29.625 Fitting factors. § 29.1351 General. § 27.785 Seats, berths, litters, safety belts, * * * * * and harnesses. (d) Each seat, berth, litter, safety belt, 14. In § 29.1359, a new paragraph (c) * * * * * and harness attachment to the structure is added to read as follows: (k) * * * must be shown by analysis, tests, or § 29.1359 Electrical system fire and smoke (2) * * * The fitting factor required both, to be able to withstand the inertia protection. by § 27.625(d) shall be applied. forces prescribed in § 29.561(b)(3) * * * * * multiplied by a fitting factor of 1.33. § 27.975 [Amended] (c) Insulation on electrical wire and 4. In § 27.975, paragraph (b) is 9. Section 29.785 is amended by cable installed in the rotorcraft must be amended by removing the words‘‘, revising the heading and by adding a self-extinguishing when tested in unless a rollover is shown to be new sentence to the end of paragraph accordance with Appendix F, Part extremely remote’’. (k)(2) to read as follows: I(a)(3), of part 25 of this chapter. 5. In § 27.1329, a new paragraph (f) is § 29.785 Seats, berths, litters, safety belts, Issued in Washington, DC, on August 7, added to read as follows: and harnesses 1998. § 27.1329 Automatic pilot system. * * * * * Jane F. Garvey, * * * * * (k) * * * Administrator. (f) If the automatic pilot system can be (2) * * * The fitting factor required [FR Doc. 98–21609 Filed 8–11–98; 8:45 am] coupled to airborne navigation by § 29.625(d) shall be applied. BILLING CODE 4910±13±M i

Reader Aids Federal Register Vol. 63, No. 155 Wednesday, August 12, 1998

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING AUGUST

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 523±5227 3 CFR 130...... 42593 Presidential Documents Proclamations: 10 CFR Executive orders and proclamations 523±5227 6641 (Modified by Ch. XI...... 42201 Proc. 7113) ...... 41951 The United States Government Manual 523±5227 1101...... 42201 7112...... 41949 1102...... 42201 7113...... 41951 Other Services Proposed Rules: 7114...... 42563 10...... 41206 523±4534 Electronic and on-line services (voice) 7115...... 43061 11...... 41206 Privacy Act Compilation 523±3187 Executive Orders: 25...... 41206 Public Laws Update Service (numbers, dates, etc.) 523±6641 13061 (See Proc. 95...... 41206 TTY for the deaf-and-hard-of-hearing 523±5229 7112) ...... 41949 13080 (See Proc. 12 CFR 7112) ...... 41949 3...... 42668 ELECTRONIC RESEARCH 13083 (Suspended by 6...... 42668 World Wide Web 13095) ...... 42565 208...... 42668 13093 (See Proc. 225...... 42668 Full text of the daily Federal Register, CFR and other 7112) ...... 41949 325...... 42668 publications: EO 13095 ...... 42565 565...... 42668 http://www.access.gpo.gov/nara 13096...... 42681 567...... 42668 Federal Register information and research tools, including Public 13097...... 43065 607...... 41184 Inspection List, indexes, and links to GPO Access: 611...... 41958 5 CFR 614...... 41958 http://www.nara.gov/fedreg 330...... 41387 620...... 41958 E-mail 1201...... 41177, 42685 630...... 41958 1209...... 41181 Proposed Rules: PENS (Public Law Electronic Notification Service) is an E-mail 1631...... 41707 26...... 43052 service that delivers information about recently enacted Public 2634...... 43067 212...... 43052 Laws. To subscribe, send E-mail to 2636...... 43067 348...... 43052 [email protected] 5701...... 43069 404...... 41478 with the text message: Proposed Rules: 563f...... 43052 2635...... 41476 701...... 41976, 41978 subscribe publaws-l 7 CFR Use [email protected] only to subscribe or unsubscribe to 14 CFR PENS. We cannot respond to specific inquiries at that address. 17...... 42283 27...... 43282 301...... 41388, 41389 Reference questions. Send questions and comments about the 29...... 43282 920...... 41390 Federal Register system to: 39 ...... 41184, 41393, 41716, 948...... 42686 42201, 42203, 42205, 42206, [email protected] 981...... 41709 42208, 42210, 42213, 42214, The Federal Register staff cannot interpret specific documents or 989...... 42688 42215, 42217, 42219, 42220, regulations. 993...... 42284 42222, 42691, 43070, 43072 997...... 41182, 41323 71 ...... 41323, 41717, 41958, 998...... 41182 42223, 42665, 42692, 42694, FEDERAL REGISTER PAGES AND DATES, AUGUST 1446...... 41711 42695, 42696, 43073, 43071 41177±41386...... 3 1951...... 41713 97 ...... 42224, 42567, 42569 41387±41706...... 4 1955...... 41715 Proposed Rules: 41707±41956...... 5 Proposed Rules: 39 ...... 41479, 41481, 41483, 300...... 43117 41957±42200...... 6 41737, 41739, 41741, 42286, 319...... 43117 42288, 42569, 42598, 42770 42201±42566...... 7 905...... 42764 65...... 41743 42567±42680...... 10 1106...... 43125 66...... 41743 42681±43066...... 11 71 ...... 41485, 41743, 41749, 8 CFR 43067±43286...... 12 41750, 41751, 41752, 42290, Proposed Rules: 42291, 42292, 42293, 42294, 17...... 42283 42295, 42772 104...... 41657 147...... 41743 208...... 41478 15 CFR 9 CFR 30...... 41186 97...... 41957 280...... 41718 Proposed Rules: 738...... 42225 93...... 42593 740...... 42225 94...... 42593 742...... 42225 ii Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Reader Aids

744...... 41323, 42225 24 CFR 80...... 43046 73 ...... 41735, 42281, 43098 746...... 42225 Proposed Rules: 81...... 42489 90...... 41201 748...... 42225 5...... 41754 82...... 41625, 42728 97...... 41201, 42276 752...... 42225 200...... 41754 148...... 42110, 42580 Proposed Rules: Proposed Rules: 207...... 41754 159...... 41192 1...... 41538 30...... 41979 236...... 41754 180 ...... 41720, 41727, 42240, 20...... 43026 266...... 41754 42246, 42248, 42249, 43080, 41...... 41757 16 CFR 880...... 41754 43085 43...... 41538 254...... 42570 881...... 41754 185...... 42249 63...... 41538 1610...... 42697 882...... 41754 261...... 42110, 42190 64...... 43026 883...... 41754 266...... 42110 73 ...... 41765, 41766, 42802 17 CFR 884...... 41754 268...... 42110, 42580 74...... 42802 231...... 41394 886...... 41754 271...... 42110, 42580 76...... 42330 240...... 42229 891...... 41754 302...... 42110 430...... 42238 241...... 41394 965...... 41754 48 CFR 249...... 42229 982...... 41754 745...... 41430 205...... 41972 271...... 41394 983...... 41754 Proposed Rules: 276...... 41394 62 ...... 41220, 41221, 41756, 206...... 41972 Proposed Rules: 25 CFR 42308, 42782, 42783, 42784, 217...... 41972 42786, 43127 219...... 41972 Ch. I ...... 41982 518...... 41960 1...... 42600 55...... 41991 225...... 41972 Proposed Rules: 62...... 41508, 42310 226...... 41972 18 CFR 542...... 42940 63...... 41508 236...... 41972 161...... 43075 72...... 41357 252...... 41972 26 CFR 253...... 41972 Proposed Rules: 73...... 41357 Ch. I ...... 42974 1...... 41420 82...... 41652, 42791 1511...... 41450 1b...... 41982 Proposed Rules: 261...... 41991 1515...... 41450 37...... 42296 1...... 41754 268...... 41536 1552...... 41450 161...... 42974 53...... 41486 1609...... 42584 250...... 42974 301...... 41486 41 CFR 1805...... 43099 284...... 42974 101...... 41420 1822...... 43099 29 CFR 1842...... 42756 343...... 41982 Proposed Rules: 1844...... 43099 385...... 41982 Proposed Rules: 101±47...... 42310, 42792 1915...... 41755 1853...... 42756 20 CFR 42 CFR Proposed Rules: 30 CFR 31 ...... 43127, 43238, 43239 404...... 41404 Proposed Rules: 416...... 41404 250...... 42699 48...... 43236 Ch. IV...... 42796 52...... 43236 Proposed Rules: 253...... 42699 413...... 42797 416...... 42601 917...... 41423 936...... 42574 44 CFR 49 CFR 21 CFR Proposed Rules: 64...... 42257, 42259 564...... 42586 5...... 41959 72...... 41755 65...... 42249 571 ...... 41451, 42582, 42586 165...... 42198 75...... 41755 67...... 42264 572...... 41466 510...... 41188 902...... 42774 Proposed Rules: Proposed Rules: 520 ...... 41188, 41189, 41419 904...... 41506 67...... 42311 375...... 43128 522...... 41190, 41419 377...... 43128 556...... 41190 31 CFR 45 CFR 390...... 41766 558...... 41191 Proposed Rules: 391...... 41766, 41769 610...... 41718 233...... 42270 285...... 41687 1602...... 41193 392...... 41766 806...... 42229 393...... 41766 814...... 42699 33 CFR Proposed Rules: 142...... 43242 395...... 41766 Proposed Rules: 100...... 41718, 42579 396...... 41766 3...... 42773 117...... 41720, 43080 46 CFR 571...... 41222, 42348 5...... 42773 165...... 42233 575...... 41538 10...... 42773 Proposed Rules: Proposed Rules: 20...... 42773 514...... 42801 117...... 43080 207...... 42773 50 CFR 165...... 42304 310...... 42773 47 CFR 17...... 42757, 43100 312...... 42773 36 CFR Ch. I ...... 42275 227...... 42586 315...... 41219 1 ...... 41433, 42734, 42735 285...... 43116 316...... 42773 Proposed Rules: 2...... 42276 630...... 41205 600...... 42773 1254...... 42776 15...... 42276 648...... 42587 601...... 42773 20...... 43033 660...... 42762 39 CFR 607...... 42773 22...... 41201 678...... 41736 610...... 42773 20...... 41427 24...... 41201 679...... 42281 640...... 42773 26...... 41201 Proposed Rules: 660...... 42773 40 CFR 27...... 41201 17...... 41624, 43100 806...... 42300 62 ...... 41325, 42719, 42721, 36...... 42753 20...... 41925 42724, 42726, 43080 54...... 42753, 43088 229...... 42803 22 CFR 62...... 41427, 42235 64...... 43033 600...... 41995 514...... 42233 63...... 42238 69...... 42753, 43088 679...... 41782 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Reader Aids iii

REMINDERS SECURITIES AND Infant formula rebate Arizona; comments due by The items in this list were EXCHANGE COMMISSION contracts; requirements 8-21-98; published 7-22- editorially compiled as an aid Securities: for and evaluation of 98 to Federal Register users. Transfer agents; Year 2000 WIC program requests Air quality planning purposes; Inclusion or exclusion from readiness reports; for bids; comments due designation of areas: this list has no legal published 7-13-98 by 8-17-98; published Idaho; comments due by 8- 7-16-98 significance. TRANSPORTATION 19-98; published 8-3-98 COMMERCE DEPARTMENT DEPARTMENT Airl pollutants, hazardous National Oceanic and national emission standards: Coast Guard RULES GOING INTO Atmospheric Administration Arizona Department of Regattas and marine parades: EFFECT AUGUST 12, Fishery conservation and Environmental Quality; 1998 Parker International Waterski management: authority delegation; Marathon; published 7-13- Alaska; fisheries of comments due by 8-17- 98 AGRICULTURE Exclusive Economic 98; published 7-17-98 DEPARTMENT Winter Harbor Lobster Boat ZoneÐ Hazardous waste: Race; published 7-13-98 Agricultural Marketing Bering Sea and Gulf of State underground storage Service TRANSPORTATION Alaska; comments due tank program approvalsÐ Potatoes (Irish) grown inÐ DEPARTMENT by 8-20-98; published Nevada; comments due 7-21-98 by 8-17-98; published Colorado; published 8-11-98 Federal Aviation Administration COMMODITY FUTURES 7-17-98 ENVIRONMENTAL Airworthiness directives: TRADING COMMISSION Tennessee; comments PROTECTION AGENCY Airbus; published 7-8-98 Commodity Exchange Act: due by 8-20-98; Pesticides; tolerances in food, Recordkeeping published 7-10-98 animal feeds, and raw Dornier; published 7-8-98 requirements; electronic FARM CREDIT agricultural commodities: storage media and other ADMINISTRATION Potassium dihydrogen COMMENTS DUE NEXT recordkeeping-related Farm credit system: phosphate; published 8- WEEK issues; comments due by Funding and fiscal affairs, 12-98 8-18-98; published 8-10- loan policies and Zucchini juice added to AGRICULTURE 98 operations, and funding buffalo gourd root powder; DEPARTMENT DEFENSE DEPARTMENT operationsÐ published 8-12-98 Agricultural Marketing Acquisition regulations: Investment management; FEDERAL Service Simplified acquisition comments due by 8-17- COMMUNICATIONS Apricots grown inÐ procedures; comments 98; published 6-18-98 COMMISSION Washington; comments due due by 8-18-98; published FEDERAL Common carrier services: by 8-17-98; published 6- 6-19-98 COMMUNICATIONS Schools and libraries and 16-98 Federal Acquisition Regulation COMMISSION rural health care universal Milk marketing orders: (FAR): Common carrier services: support mechanism; Southwest Plains; comments Individuals with disabilities; Access chargesÐ funding year change from due by 8-19-98; published employment and Incumbent local exchange calendar year cycle to 8-12-98 advancement; comments carriers subject to rate- fiscal year cycle, etc.; due by 8-21-98; published Oranges, grapefruit, of-return regulation; published 8-12-98 6-22-98 tangerines, and tangelos access charge reform; FEDERAL TRADE grown inÐ No-cost value engineering comments due by 8-17- COMMISSION change proposals; 98; published 7-20-98 Florida; comments due by comments due by 8-21- Appliances, consumer; energy 8-17-98; published 7-16- Commercial mobile radio 98; published 6-22-98 consumption and water use 98 servicesÐ information in labeling and ENVIRONMENTAL Broadband personal Pears (winter) grown inÐ advertising: PROTECTION AGENCY communications Oregon et al.; comments Comparability rangesÐ Air pollutants, hazardous; services carriers; due by 8-20-98; published national emission standards: forbearance from Clothes washers; 7-21-98 published 4-20-98 Arizona Department of regulations in wireless Prunes (fresh) grown inÐ telecommunications Supplemental standards of Environmental Quality; markets; comments due ethical conduct for agency Washington and Oregon; authority delegation; by 8-18-98; published employees; published 8-12- comments due by 8-17- comments due by 8-17- 8-11-98 98 98; published 7-16-98 98; published 7-17-98 AGRICULTURE Air pollution control; new Radio and television GOVERNMENT ETHICS broadcasting: OFFICE DEPARTMENT motor vehicles and engines: Call sign assignments for Government ethics: Federal Crop Insurance Light-duty vehicles and Corporation trucksÐ broadcast stations; Statutory honorarium bar comments due by 8-17- Crop insurance regulations: Heavy-duty engines for provisions and 98; published 7-16-98 original equipment supplemental reporting Fresh market tomatoes; Radio broadcasting: comments due by 8-19- manufacturers and for requirements removed Radio technical rules; and other conforming 98; published 7-20-98 aftermarket conversion manufacturers; streamlining; comments technical amendments; AGRICULTURE comments due by 8-19- due by 8-21-98; published published 8-12-98 DEPARTMENT 98; published 7-20-98 6-22-98 NATIONAL AERONAUTICS Food and Nutrition Service Air quality implementation Radio stations; table of AND SPACE Child nutrition programs: plans; √A√approval and assignments: ADMINISTRATION Women, infants, and promulgation; various Colorado; comments due by Acquisition regulations: children; special States; air quality planning 8-17-98; published 7-2-98 Miscellaneous amendments; supplemental nutrition purposes; designation of Wyoming; comments due by published 8-12-98 programÐ areas: 8-17-98; published 7-2-98 iv Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Reader Aids

FEDERAL MARITIME adoption; comments due SECURITIES AND Waivers, exemptions, and COMMISSION by 8-17-98; published 6- EXCHANGE COMMISSION pilot programs; meeting; Freedom of Information Act; 16-98 Practice and procedure: comments due by 8-20- implementation; comments INTERIOR DEPARTMENT Improper professional 98; published 7-29-98 due by 8-21-98; published Fish and Wildlife Service conduct standards; 7-22-98 comments due by 8-20- Endangered and threatened LIST OF PUBLIC LAWS GENERAL SERVICES species: 98; published 7-21-98 ADMINISTRATION Parish's alkali grass; TRANSPORTATION This is a continuing list of Federal Acquisition Regulation comments due by 8-19- DEPARTMENT public bills from the current (FAR): 98; published 7-20-98 Coast Guard session of Congress which Individuals with disabilities; INTERIOR DEPARTMENT Ports and waterways safety: have become Federal laws. It employment and Surface Mining Reclamation Hudson River, NY; safety may be used in conjunction advancement; comments and Enforcement Office zone; comments due by with ``P L U S'' (Public Laws due by 8-21-98; published Update Service) on 202±523± Permanent program and 8-19-98; published 5-21- 6-22-98 6641. This list is also abandoned mine land 98 available online at http:// No-cost value engineering reclamation plan San Juan Harbour, PR; www.nara.gov/fedreg. change proposals; submissions: regulated navigation area; comments due by 8-21- comments due by 8-17- 98; published 6-22-98 Arkansas; comments due by The text of laws is not 8-19-98; published 8-4-98 98; published 6-18-98 published in the Federal HEALTH AND HUMAN Regattas and marine parades: Register but may be ordered SERVICES DEPARTMENT NATIONAL AERONAUTICS AND SPACE Eighth Coast Guard District in ``slip law'' (individual Food and Drug ADMINISTRATION Annual Marine Events; pamphlet) form from the Administration Superintendent of Documents, Federal Acquisition Regulation comments due by 8-17- Food for human consumption: 98; published 6-16-98 U.S. Government Printing (FAR): Office, Washington, DC 20402 Chlorine dioxide; comments TRANSPORTATION Individuals with disabilities; (phone, 202±512±1808). The due by 8-19-98; published employment and DEPARTMENT 7-20-98 text will also be made advancement; comments Federal Aviation available on the Internet from Eggs and egg productsÐ due by 8-21-98; published Administration GPO Access at http:// Farm-to-table safety 6-22-98 Airworthiness directives: www.access.gpo.gov/suÐdocs/. system; salmonella No-cost value engineering Airbus; comments due by 8- Some laws may not yet be enteritidis contamination change proposals; 17-98; published 7-16-98 available. control and reduction; comments due by 8-21- AlliedSignal, Inc.; comments comments due by 8-17- H.R. 643/P.L. 105±218 98; published 6-22-98 due by 8-18-98; published 98; published 5-19-98 OFFICE OF MANAGEMENT 6-19-98 To designate the United Human drugs: States courthouse to be AND BUDGET Boeing; comments due by constructed at the corner of Laxative products (OTC); Management and Budget 8-17-98; published 6-18- Superior and Huron Roads, in tentative final monograph; Office 98 comments due by 8-19- Cleveland, Ohio, as the ``Carl Prompt Payment Act; Cessna; comments due by 98; published 5-21-98 B. Stokes United States implementation: 8-18-98; published 6-26- Courthouse''. (Aug. 7, 1998; HEALTH AND HUMAN Prompt payment procedures; 98 112 Stat. 912) SERVICES DEPARTMENT revision and replacement Dornier; comments due by H.R. 1151/P.L. 105±219 Health Care Financing of Circular A-125; 8-21-98; published 7-22- Administration comments due by 8-17- 98 Credit Union Membership Access Act (Aug. 7, 1998; Medicare: 98; published 6-17-98 Mooney Aircraft Corp.; 112 Stat. 913) Rural health professional PERSONNEL MANAGEMENT comments due by 8-21- shortage areas; OFFICE 98; published 6-17-98 H.R. 1385/P.L. 105±220 teleconsultations payment Acquisition regulations: Pratt & Whitney; comments Workforce Investment Act of plan; comments due by 8- Health benefits, Federal due by 8-17-98; published 1998 (Aug. 7, 1998; 112 Stat. 21-98; published 6-22-98 employeesÐ 6-18-98 936) HEALTH AND HUMAN Improving carrier Saab; comments due by 8- H.R. 3152/P.L. 105±221 SERVICES DEPARTMENT performance; 17-98; published 7-16-98 Amy Somers Volunteers at Health insurance reform: conforming changes; Short Brothers; comments Food Banks Act (Aug. 7, National standard employer comments due by 8-17- due by 8-18-98; published 1998; 112 Stat. 1248) identifier; comments due 98; published 7-16-98 7-24-98 H.R. 3731/P.L. 105±222 by 8-17-98; published 6- Retirement: SOCATA-Group To designate the auditorium 16-98 Federal Employees Aerospatiale; comments located within the Sandia Protection of human subjects: Retirement SystemÐ due by 8-20-98; published Technology Transfer Center in Pregnant women, human Open Enrollment Act; 7-16-98 Albuquerque, New Mexico, as fetuses, and newborns as implementation; Class E airspace; comments the ``Steve Schiff Auditorium''. research subjects and comments due by 8-17- due by 8-21-98; published (Aug. 7, 1998; 112 Stat. 1249) 7-22-98 pertaining to human in 98; published 6-18-98 H.R. 4354/P.L. 105±223 vitro fertilization; POSTAL SERVICE TRANSPORTATION To establish the United States comments due by 8-18- Domestic Mail Manual: DEPARTMENT Capitol Police Memorial Fund 98; published 5-20-98 Breast cancer research Federal Highway on behalf of the families of HOUSING AND URBAN semi-postal stamp; terms Administration Detective John Michael DEVELOPMENT and conditions for use Motor carrier safety standards: Gibson and Private First Class DEPARTMENT and determination of Commercial motor vehicle Jacob Joseph Chestnut of the National Housing Act: value; comments due by marking; comments due United States Capitol Police. Minimum property standard; 8-17-98; published 7-16- by 8-17-98; published 6- (Aug. 7, 1998; 112 Stat. 1250) 1995 model energy code 98 16-98 Last List August 7, 1998 Federal Register / Vol. 63, No. 155 / Wednesday, August 12, 1998 / Reader Aids v

Public Laws Electronic Notification Service (PENS)

PENS is a free electronic mail notification service of newly enacted public laws. To subscribe, send E-mail to [email protected] with the text message: subscribe PUBLAWS-L Your Name. Note: This service is strictly for E-mail notification of new public laws. The text of laws is not available through this service. PENS cannot respond to specific inquiries sent to this address.