Pages 29959±30182 Vol. 60 6±7±95 No. 109 federal register June 7,1995 Wednesday this issue. Boston, MAseeannouncementontheinsidecoverof For informationonbriefingsinWashington,DCand Briefings onHowToUsetheFederalRegister 1 II Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995
SUBSCRIPTIONS AND COPIES
PUBLIC Subscriptions: Paper or fiche 202–512–1800 FEDERAL REGISTER Published daily, Monday through Friday, Assistance with public subscriptions 512–1806 (not published on Saturdays, Sundays, or on official holidays), by Online: the Office of the Federal Register, National Archives and Records Telnet swais.access.gpo.gov, login as newuser 2 III Contents Federal Register Vol. 60, No. 109 Wednesday, June 7, 1995 Agricultural Marketing Service Coast Guard RULES RULES Pork promotion, research, and consumer information, Ports and waterways safety: 29962–29965 San Francisco Bay Region, CA; regulated navigation area Soybean promotion, research, and consumer information: Correction, 30157 United Soybean Board; membership and meetings, 29960–29962 Commerce Department PROPOSED RULES See Export Administration Bureau Dairy promotion program: See International Trade Administration Promotion and research order, 30013 See National Oceanic and Atmospheric Administration Filberts/hazelnuts grown in Oregon and Washington, See Patent and Trademark Office 30170–30181 Commodity Credit Corporation NOTICES Agriculture Department Upland cotton import quota, 30062–30064 See Agricultural Marketing Service See Animal and Plant Health Inspection Service Defense Department See Commodity Credit Corporation See Air Force Department See Federal Crop Insurance Corporation See Army Department See National Security Agency/Central Security Service Air Force Department NOTICES NOTICES Agency information collection activities under OMB Meetings: review, 30072–30073 Scientific Advisory Board, 30073–30074 Privacy Act: Systems of records, 30071–30072 Animal and Plant Health Inspection Service Education Department RULES PROPOSED RULES Plant-related quarantine, foreign: Educational research and improvement: Logs, lumber, and other unmanufactured wood articles; Applications for grants and cooperative agreements and importation contract proposals; activities conduct and evaluation Correction, 30157 standards, 30160–30165 PROPOSED RULES NOTICES Import and export user fees Grantback arrangements; award of funds: Correction, 30157 Pennsylvania, 30076–30078 NOTICES Grants and cooperative agreements; availability, etc.: Environmental statements; availability, etc.: Postsecondary education— Nonregulated status determinations— North American mobility in higher education; special Monsanto Co.; genetically engineered corn line, 30061– focus competition, 30078–30079 30062 Energy Department Architectural and Transportation Barriers Compliance See Federal Energy Regulatory Commission Board RULES NOTICES Acquisition regulations: Meetings: Independent research and development and bid and Americans with Disabilities Act Accessibility Guidelines proposal costs policy, travel policy, and technical Review Advisory Committee, 30064 changes, 30002–30006 Environmental Protection Agency Army Department RULES NOTICES Toxic substances: Privacy Act: Significant new uses— Systems of records, 30074 Organotin lithium compound, 29992–29993 PROPOSED RULES Central Security Service/National Security Agency Air quality planning purposes; designation of areas: Arizona, 30046–30048 See National Security Agency/Central Security Service Clean Air Act: State operating permits programs— Civil Rights Commission Texas, 30037–30046 PROPOSED RULES Pesticides; tolerances in food, animal feeds, and raw Regulatory agenda agricultural commodities: Proposed item withdrawn, 30058 Burkholderia (Pseudomonas) cepacia, 30048–30050 IV Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Contents Toxic substances: NOTICES Significant new uses— Disaster and emergency areas: Organotin lithium compound, 30050–30052 Illinois, 30086 NOTICES South Dakota, 30086–30087 Confidential business information and data transfer, 30083– 30084 Federal Energy Regulatory Commission Pesticide registration, cancellation, etc.: NOTICES Pounce 3.2 EC insecticide, etc., 30084–30086 Electric rate and corporate regulation filings: LG&E Power Marketing Inc. et al., 30079–30080 Export Administration Bureau Natural gas certificate filings: Northern Natural Gas Co. et al., 30081–30082 PROPOSED RULES Northwest Pipeline Corp. et al., 30080–30081 State log exports ban administration, 30030–30032 Applications, hearings, determinations, etc.: Central Vermont Public Service Corp., 30082 Federal Aviation Administration Crossroads Pipeline Co., 30082 RULES Oregon Trail Electric Consumers Cooperative Inc., 30083 Airworthiness directives: S.D. Warren Co., 30083 Alexander Schleicher GmbH & Co., 29978–29979 Fokker, 29981–29982 Federal Reserve System Jetstream, 29979–29981 RULES Socata, 29982–29983 Equal credit opportunity (Regulation B): PROPOSED RULES Staff interpretation, 29965–29969 Airworthiness standards: Truth in Lending (Regulation Z): Special conditions— Mortgage rates and fees; limitations and disclosure Israel Aircraft Industries Ltd. model Galaxy series requirements airplane, 30019–30026 Correction, 29969 Class E airspace, 30027–30030 PROPOSED RULES NOTICES Home mortgage disclosure (Regulation C): Meetings: Staff interpretation, 30013–30019 Air Traffic Procedures Advisory Committee, 30151–30152 NOTICES Aviation Rulemaking Advisory Committee, 30152 Meetings; Sunshine Act, 30156 RTCA, Inc., 30152 Applications, hearings, determinations, etc.: Passenger facility charges; applications, etc.: First Citizens Bancorporation of South Carolina, Inc., Florence Regional Airport, SC, 30152–30153 30087 Stewart Associates, 30087 Federal Bureau of Investigation NOTICES Federal Retirement Thrift Investment Board Meetings: NOTICES DNA Advisory Board, 30103 Meetings; Sunshine Act, 30156 Federal Transit Administration Federal Communications Commission NOTICES RULES Environmental statements; availability, etc.: Freedom of Information Act; implementation: Metro-North commuter railroad, Dutchess County, NY, Fee schedule, 30002 PROPOSED RULES 30087–30089 Common carrier services: Fish and Wildlife Service Other billing and collecting expenses; local exchange NOTICES carriers separations procedures, 30059–30060 Agency information collection activities under OMB Uniform system of accounts to raise expense limit for review, 30097–30098 certain items of equipment, 30058–30059 Endangered and threatened species permit applications, NOTICES Rulemaking proceedings; petitions filed, granted, denied, 30098 etc., 30086 Food and Drug Administration RULES Federal Crop Insurance Corporation Animal drugs, feeds, and related products: RULES Gentamicin sulfate injection, 29985–29986 Crop insurance regulations: New drug applications— Hybrid sorghum seed and rice, hybrid seed crop and Dexamethasone injection, 29984–29985 sunflower seed, 29959–29960 Tea Importation Act: Tea standards, 29986–29987 Federal Emergency Management Agency PROPOSED RULES RULES Medical devices: Flood elevation determinations: Dental devices— Arizona et al., 29997–30001 Endodontic dry heat sterilizer; premarket approval California et al., 29993–29997 requirement, 30032–30037 PROPOSED RULES NOTICES Flood elevation determinations: Committees; establishment, renewal, termination, etc.: Arkansas et al., 30052–30058 Veterinary Medicine Advisory Committee, 30089 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Contents V Medical devices; premarket approval: Realty actions; sales, leases, etc.: EPT-1000 Cardiac Ablation System, 30089–30090 Nevada, 30095–30097 Recreation management restrictions, etc.: Health and Human Services Department Las Cruces District, NM; visitor restrictions, 30093–30095 See Food and Drug Administration See Health Resources and Services Administration Legal Services Corporation See National Institutes of Health NOTICES See Public Health Service Meetings; Sunshine Act, 30156 Health Resources and Services Administration National Archives and Records Administration NOTICES RULES Grants and cooperative agreements; availability, etc.: Records management: Emergency medical services and trauma care in rural Vital records; records disaster mitigation and recovery, areas, 30090 29989–29992 National Practitioner Data Bank; user fee, 30090–30091 National Biological Service Indian Affairs Bureau NOTICES NOTICES Agency information collection activities under OMB Indian tribes, acknowledgement of existence review, 30098–30099 determinations, etc.: Fernandeno/Tataviam Tribal Council, 30168 National Highway Traffic Safety Administration RULES Interior Department Motor vehicle safety standards: See Fish and Wildlife Service Theft prevention; automatic transmission lock, 30006– See Indian Affairs Bureau 30011 See Land Management Bureau See National Biological Service National Institute for Literacy NOTICES International Trade Administration Agency information collection activities under OMB NOTICES review, 30114–30115 Export trade certificates of review, 30064–30065 International Trade Commission National Institutes of Health NOTICES NOTICES Import investigations: Meetings: Chemicals and chemical products; probable effect of National Cancer Institute, 30091–30092 certain modifications to NAFTA rules of of origin National Institute of General Medical Sciences, 30091 pertaining to such products, 30099 National Institute on Aging, 30091 Diltiazem hydrochloride and diltiazem preparations, Research Grants Division special emphasis panels, 30091 30099–30100 National Oceanic and Atmospheric Administration Interstate Commerce Commission RULES RULES Fishery conservation and management: Practice and procedure: Northeast multispecies; correction, 30157 Single State insurance registration, 30011–30012 NOTICES NOTICES Marine mammals: Motor carriers: Incidental taking; authorization letters, etc.— Declaratory order petitions— Exxon Co., U.S.A., 30066–30068 Anacomp, Inc., et al., 30100–30102 Meetings: Railroad operation, acquisition, construction, etc.: Shark Operations Team, 30068–30069 Northern Ohio & Western Railway, L.L.C., 30102 Permits: Portage Private Industry Council, Inc., et al., 30102 Marine mammals, 30065–30066 Railroad services abandonment: Fox Valley & Western Ltd., 30102 National Security Agency/Central Security Service NOTICES Justice Department Privacy Act: See Federal Bureau of Investigation Systems of records, 30074–30076 NOTICES Agency information collection activities under OMB Nuclear Regulatory Commission review, 30102–30103 NOTICES Environmental statements; availability, etc.: Labor Department Consumers Power Co., 30115–30116 See Pension and Welfare Benefits Administration Entergy Operations, Inc., 30116–30117 Houston Lighting & Power Co. et al., 30117–30118 Land Management Bureau North Atlantic Energy Service Corp., 30118–30120 NOTICES Pacific Gas & Electric Co., 30120 Coal leases, exploration licenses, etc.: Applications, hearings, determinations, etc.: Montana; correction, 30092 PECO Energy Co., 30120–30122 VI Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Contents Patent and Trademark Office NOTICES PROPOSED RULES Chemical and biological weapons proliferation sanctions: Patent and trademark cases: GE Plan (Austria) et al., 30148–30149 Fee revisions Foreign assistance determinations: Correction, 30157 Laos, 30148 NOTICES International Traffic in Arms regulations; statutory Patent cases: debarment, 30149–30150 Twenty-year patent term and effects on patent expiration Munitions export licenses suspension: dates and term extensions, 30069–30071 Teledyne Wah Chang Albany, 30151 Teledyne Wah Chang Albany et al., 30150–30151 Pension and Welfare Benefits Administration NOTICES Employee benefit plans; prohibited transaction exemptions: Transportation Department General Motors et al., 30103–30106 See Coast Guard Phillips Petroleum Co. et al., 30106–30114 See Federal Aviation Administration See Federal Transit Administration Public Health Service See National Highway Traffic Safety Administration See Food and Drug Administration See Research and Special Programs Administration See Health Resources and Services Administration NOTICES See National Institutes of Health Aviation proceedings: NOTICES Hearings, etc.— Organization, functions, and authority delegations: Omni Air Express, Inc., 30151 National Institutes of Health, 30092 Railroad Retirement Board United States Information Agency RULES RULES Railroad Retirement Act: Audio-visual materials; world-wide free flow (export- Custom tailored information availability; fee schedule, import); educational, scientific, and cultural material, 29983–29984 29988–29989 Research and Special Programs Administration NOTICES Separate Parts In This Issue Pipeline safety; waiver petitions: Alyeska Pipeline Service Co., 30153–30155 Part II Securities and Exchange Commission Department of Education, 30160–30165 NOTICES Self-regulatory organizations; proposed rule changes: American Stock Exchange, Inc., 30122–30125 Part III Chicago Board Options Exchange, Inc., 30125–30131 Department of the Interior, Bureau of Indian Affairs, 30168 National Association of Securities Dealers, Inc., 30133– 30134 Part IV New York Stock Exchange, Inc., 30135–30136 Department of Agriculture, Agricultural Marketing Service, Philadelphia Stock Exchange, Inc., 30131–30133, 30136– 30170–30181 30137 Applications, hearings, determinations, etc.: Guardian Insurance & Annuity Co., Inc., et al., 30137– 30148 Reader Aids Additional information, including a list of public laws, Small Business Administration telephone numbers, and finding aids, appears in the Reader RULES Aids section at the end of this issue. Small business size standards: Minority small business and capital ownership development assistance, 29969–29978 Electronic Bulletin Board State Department Free Electronic Bulletin Board service for Public Law RULES numbers, Federal Register finding aids, and a list of Personnel: documents on public inspection is available on 202–275– Indemnification of employees, 29987–29988 1538 or 275–0920. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / 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. 7 CFR 47 CFR 319...... 30159 0...... 30002 401...... 29959 Proposed Rules: 443...... 29959 32...... 30058 457...... 29959 36...... 30059 1220...... 29960 1230...... 29962 48 CFR Proposed Rules: 915...... 30002 931...... 30002 982...... 30170 942...... 30002 1150...... 30013 951...... 30002 9 CFR 952...... 30002 Proposed Rules: 970...... 30002 130...... 30157 49 CFR 12 CFR 571...... 30006 202...... 29965 1023...... 30011 226...... 29969 50 CFR Proposed Rules: 651...... 30157 203...... 30013 13 CFR 121...... 29969 124...... 29969 14 CFR 39 (4 documents) ...... 29978, 29979, 29981, 29982 Proposed Rules: 25...... 30019 71 (3 documents) ...... 30027, 30028, 30029 15 CFR Proposed Rules: 792...... 30030 20 CFR 200...... 29983 21 CFR 522 (2 documents) ...... 29984, 29985 1220...... 29986 Proposed Rules: 872...... 30032 22 CFR 21...... 29987 502...... 29988 33 CFR 165...... 30157 34 CFR Proposed Rules: 700...... 30160 36 CFR 1236...... 29989 37 CFR Proposed Rules: 1...... 30157 40 CFR 721...... 29992 Proposed Rules: 70...... 30037 81...... 30046 180...... 30048 721...... 30050 44 CFR 65 (2 documents) ...... 29993, 29995 67...... 29997 Proposed Rules: 67...... 30052 45 CFR Proposed Rules: Ch. VII...... 30058 29959 Rules and Regulations Federal Register Vol. 60, No. 109 Wednesday, June 7, 1995 This section of the FEDERAL REGISTER Washington, D.C. 20250. Hand or Assessment. The provisions and contains regulatory documents having general messenger delivery may be made to procedures contained in this rule will applicability and legal effect, most of which 2101 L Street, N.W., Suite 500, not have a substantial direct effect on are keyed to and codified in the Code of Washington D.C. Written comments will states or their political subdivisions, or Federal Regulations, which is published under be available for public inspection and 50 titles pursuant to 44 U.S.C. 1510. on the distribution of power and copying in the Office of the Manager, responsibilities among the various The Code of Federal Regulations is sold by 2101 L Street, N.W., 5th Floor, levels of government. the Superintendent of Documents. Prices of Washington, D.C., during regular This regulation will not have a new books are listed in the first FEDERAL business hours, Monday through Friday. significant impact on a substantial REGISTER issue of each week. FOR FURTHER INFORMATION CONTACT: number of small entities. The amount of Diana Moslak, Regulatory and work required of the insurance Procedural Development Staff, Federal DEPARTMENT OF AGRICULTURE companies delivering these policies and Crop Insurance Corporation, U.S. the procedures therein will not increase Federal Crop Insurance Corporation Department of Agriculture, Washington, from the amount of work currently D.C. 20250. Telephone (202) 254–8314. required to deliver previous policies to 7 CFR Parts 401, 443, and 457 SUPPLEMENTARY INFORMATION: This which this regulation applies. This rule action has been reviewed under United RIN 0563±AB28 does not have any greater or lesser States Department of Agriculture impact on the insured farmer. Therefore, General Crop Insurance Regulations, (‘‘USDA’’) procedures established by this action is determined to be exempt Various Endorsements; Hybrid Seed Executive Order 12866 and from the provisions of the Regulatory Crop Insurance Regulations; and Departmental Regulation 1512–1. This Flexibility Act (5 U.S.C. 605), and no Common Crop Insurance Regulations, action constitutes a review as to the Regulatory Flexibility Analysis was Sunflower Seed Crop Insurance need, currency, clarity, and prepared. Provisions effectiveness of these regulations under those procedures. The sunset review This program is listed in the Catalog AGENCY: Federal Crop Insurance date established for hybrid sorghum of Federal Domestic Assistance under Corporation. seed is May 1, 2000; rice is August 29, No. 10.450. ACTION: Interim rule. 1998; hybrid seed is October 1, 1997; This program is not subject to the and sunflower seed is March 1, 1999. provisions of Executive Order 12372 SUMMARY: The Federal Crop Insurance This rule has been determined to be which require intergovernmental Corporation (‘‘FCIC’’) hereby amends ‘‘not significant’’ for the purposes of consultation with state and local the General Crop Insurance Regulations, Executive Order 12866, and therefore, officials. See the Notice related to 7 CFR Hybrid Sorghum Seed and Rice has not been reviewed by the Office of part 3015, subpart V, published at 48 FR Endorsements; the Hybrid Seed Crop Management and Budget (‘‘OMB’’). 29115, June 24, 1983. Insurance Regulations; and the Common The information collection The Office of the General Counsel has Crop Insurance Regulations, Sunflower requirements contained in these determined that these regulations meet Seed Crop Insurance Provisions; regulations (7 CFR parts 401, 443, and the applicable standards provided in applicable for the 1995 crop year only, 457) were previously approved by OMB subsections 2(a) and 2(b)(2) of Executive by revising the prevented planting pursuant to the Paperwork Reduction Order 12778. The provisions of this rule coverage. The intended effect of this Act of 1980 (44 U.S.C. 3501 et seq.), will preempt state and local laws to the regulation is to allow an insured to under OMB control numbers 0563– extent such state and local laws are collect both a guaranteed deficiency 0001, 0563–0003, 0563–0014, 0563– payment under the so-called 50/92 and 0023, 0563–0025, 0563–0029, 0563– inconsistent herewith. The provisions of 0/92 provisions of the wheat, feed 0032, and 0563–0036. The amendments this rule are retroactive to January 1, grains, cotton, and rice programs set forth in this rule do not revise the 1995, so as to make the benefits administered by the United States content or alter the frequency of hereunder available to all insureds for Department of Agriculture (‘‘USDA’’) reporting for any of the forms cleared the applicable 1995 crop year. The under the authority of the Agricultural under the above-referenced dockets. implementation of the provision is not Act of 1949, as amended, and a Public reporting burden for the adverse to any insured. The prevented planting indemnity under the collection of information is estimated to administrative appeal provisions crop insurance program. range from 15 to 90 minutes per located at 7 CFR part 400, subpart J, or DATES: This rule is effective January 1, response, including the time for promulgated by the National Appeals 1995. Written comments, data, and reviewing instructions, searching Division, whichever is applicable, must opinions on this rule will be accepted existing data sources, gathering and be exhausted before judicial action may until close of business August 7, 1995 maintaining the data needed, and be brought. and will be considered when the rule is completing and reviewing the collection This action is not expected to have to be made final. of information. any significant impact on the quality of ADDRESSES: Written comments, data, It has been determined under section the human environment, health, and and opinion on this interim rule should 6(a) of Executive Order 12612, safety. Therefore, neither an be sent to Diana Moslak, Regulatory and Federalism, that this rule does not have Environmental Assessment nor an Procedural Development Staff, Federal sufficient federalism implications to Environmental Impact Statement is Crop Insurance Corporation, USDA, warrant the preparation of a Federalism needed. 29960 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations Background Authority: 7 U.S.C. 1506(1). Authority: 7 U.S.C. 1506(l). The Omnibus Budget Reconciliation 2. Section 401.109 is amended by 7. Section 457.108 is amended by Act of 1993 (OBRA) made the 50/92 and revising subparagraph 12.(d)(3)(iii)(C) of revising subparagraph 13.(d)(3)(iv)(C) of the 0/92 provisions available to the Hybrid Sorghum Seed Endorsement the Sunflower Seed Crop Provisions to producers who were prevented from to read as follows: read as follows: planting or had failed acreage for crop § 401.109 Hybrid sorghum seed years 1994 through 1997. Currently, the § 457.108 Sunflower Seed Crop Insurance endorsement. Provisions. prevented planting crop insurance provisions prohibit prevented planting * * * * * * * * * * coverage for any acreage considered to 12. Late Planting and Prevented Planting 13. Late Planting and Prevented Planting have been left unplanted under any * * * * * * * * * * other United States Department of (d) * * * (d) * * * Agriculture program. By this rule, an (3) * * * (3) * * * insured may collect both a guaranteed (iii) * * * (iv) * * * deficiency payment under the ‘‘0/85’’ (C) Land used for conservation purposes or (C) Land used for conservation purposes or intended to be left unplanted under any intended to be left unplanted under any and ‘‘0/92’’ provisions of the various program administered by the United States commodity programs administered by program administered by the United States Department of Agriculture (Proof that the Department of Agriculture (Proof that the United States Department of Agriculture insured had the inputs available to plant and insured had the inputs available to plant and under the Agricultural Act of 1949, as produce a crop with the expectation of at produce a crop with the expectation of at amended, and a prevented planting least producing the production guarantee least producing the production guarantee indemnity under the crop insurance may be required.); may be required.); program. Because the weather * * * * * * * * * * conditions in various parts of the 3. Section 401.120 is amended by Done in Washington, D.C., on June 2, 1995. midwest have not been conducive to revising subparagraph 10.(d)(3)(ii)(C) of Suzette M. Dittrich, timely planting of various 1995 program the Rice Endorsement to read as follows: Acting Manager, Federal Crop Insurance crops, an emergency situation exists for § 401.120 Rice endorsement. Corporation. many producers which requires that this [FR Doc. 95–14032 Filed 6–6–95; 8:45 am] rule be made effective retroactive to * * * * * BILLING CODE 3410±08±P January 1, 1995, without prior notice 10. Late Planting and Prevented Planting and comment. Comments are solicited * * * * * for 60 days after the date of publication (d) * * * Agricultural Marketing Service in the Federal Register and will be (3) * * * considered by FCIC before this rule is (ii) * * * 7 CFR Part 1220 made final. (C) Land used for conservation purposes or intended to be left unplanted under any RIN 0581±AB18 List of Subjects program administered by the United States [No. LS±94±003] 7 CFR Part 401 Department of Agriculture (Proof that the insured had the inputs available to plant and Soybean Promotion and Research: Crop insurance, hybrid sorghum seed, produce a crop with the expectation of at Amend the Order To Adjust rice. least producing the production guarantee may be required.); Representation on the United Soybean 7 CFR Part 443 Board and Adjust Number of Board * * * * * Crop insurance, hybrid seed. 4. The authority citation for 7 CFR Meetings Required 7 CFR Part 457 part 443 is revised to read as follows: AGENCY: Agricultural Marketing Service, Crop insurance, sunflower seed. Authority: 7 U.S.C. 1506(l). USDA. 5. Section 443.7(d) is amended by ACTION: Final rule. Interim Rule revising subparagraph 17.(d)(3)(iii)(C) of SUMMARY: This rule adjusts the number Pursuant to the authority contained in the Hybrid Seed Crop Insurance Policy of members for certain States on the the Federal Crop Insurance Act, as to read as follows: amended (7 U.S.C. 1501 et seq.), the United Soybean Board (Board) to reflect Federal Crop Insurance Corporation § 443.7 The application and policy. changes in production levels which hereby amends the General Crop * * * * * have occurred since the Board was Insurance Regulations (7 CFR Part 401) (d) * * * appointed in 1991 and decreases the by amending the Hybrid Sorghum Seed 17. Late Planting and Prevented Planting number of required Board meetings from four a year to three a year. (§ 401.109) and Rice (§ 401.120) * * * * * Endorsements; the Hybrid Seed Crop (d) * * * EFFECTIVE DATE: June 7, 1995. Insurance Regulations (7 CFR Part 443); (3) * * * FOR FURTHER INFORMATION CONTACT: and the Common Crop Insurance (iii) * * * Ralph L. Tapp, Chief, Marketing Regulations (7 CFR Part 457) by (C) Land used for conservation purposes or Programs Branch; Livestock and Seed amending the Sunflower Seed Crop intended to be left unplanted under any Division; Agricultural Marketing Service Insurance Provisions (§ 457.108); program administered by the United States (AMS), USDA, room 2606–S; P.O. Box applicable for the 1995 crop year only, Department of Agriculture (Proof that the insured had the inputs available to plant and 96456; Washington, D.C. 20090–6456. to read as follows: produce a crop with the expectation of at Telephone number 202/720–1115. least producing the production guarantee SUPPLEMENTARY INFORMATION: PARTS 401, 443, AND 457Ð Prior may be required.); [AMENDED] document in this proceeding: Proposed * * * * * Rule—Soybean Promotion and 1. The authority citation for 7 CFR 6. The authority citation for 7 CFR Research: Amend the Order to Adjust part 401 is revised to read as follows: part 457 continues to read as follows: Representation on the United Soybean Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29961 Board and Adjust Number of Board number of required Board meetings entitled to three Board members; and (5) Meetings Required published March 22, from four a year to three a year. The units with 200,000,000 bushels or more 1995 (60 FR 15082). Administrator of AMS has determined shall be entitled to four members. that this rule will not have a significant Executive Orders 12866 and 12778 and Representation on the Board, effective economic impact on a substantial Regulatory Flexibility Act with this final rule, is based on average number of small business entities. production levels for the years 1989– The Department of Agriculture is Background 1993 (excluding the crops in the years issuing this rule in conformance with in which production was the highest Executive Order 12866. The Act (7 U.S.C. 6301–6311) and in which production was the This final rule has been reviewed provides for the establishment of a lowest) as reported by the National under Executive Order No. 12778, Civil coordinated program of promotion and Agricultural Statistics Service of the Justice Reform. It is not intended to research designed to strengthen the U.S. Department of Agriculture. have a retroactive effect. soybean industry’s position in the Based on the average production The Soybean Promotion, Research, marketplace, and to maintain and levels for the years 1989–1993, this rule and Consumer Information Act (Act) expand domestic and foreign markets adjusts the number of geographic units provides that administrative and uses for soybeans and soybean from 31 to 30; and Board members from proceedings must be exhausted before products. The program is financed by an 60 to 59. Florida is no longer a separate parties may file suit in court. Under assessment of 0.5 of 1 percent of the net unit. It joins the Eastern Region, and is section 1971 of the Act, a person subject market price of soybeans sold by to the Soybean Promotion and Research represented by its Board representative. producers. Pursuant to the Act, an Order Georgia and South Carolina each lose Order (Order) may file with the was made effective July 9, 1991. The Secretary a petition stating that the one member and Wisconsin and Order established a Board of 60 Maryland each gain one member. Order, any provision of the Order, or members. For purposes of establishing This adjustment is effective with the any obligation imposed in connection the Board, the United States was 1995 nominations and appointments. with the Order is not in accordance with divided into 31 geographic units. Section 1220.212(a) of the Order law and requesting a modification of the Representation on the Board from each provides that the Board shall meet at Order or an exemption from the Order. unit was determined by the level of The petitioner has the opportunity for a production in each unit. The Secretary least four times a year, and more often hearing on the petition. After a hearing appointed the initial Board on July 11, if necessary for the Board to carry out the Secretary will rule on the petition. 1991. its responsibilities. The Board, which The statute provides that the district Section 1220.201(c) of the Order operates under a 5 percent court of the United States in any district provides that at the end of each 3 year administrative cap, has recommended to in which the person resides or carries period, the Board shall review soybean the Secretary that in order to reduce its on a business has jurisdiction to review production levels in the geographic administrative costs and comply with a ruling on the petition if a complaint units throughout the United States. The the 5 percent cap, § 1220.212(a) be for that purpose is filed not later than Board may recommend to the Secretary amended to reduce the number of 20 days after the date of entry of the modification in the levels of production required yearly Board meetings to three. ruling. necessary for Board membership for This rule reduces the required Further, section 1974 of the Act each unit. At its September 1994 minimum number of Board meetings provides, with certain exceptions, that meeting and again at its December 1994 from four to three a year. nothing in the Act may be construed to meeting, the Board voted to recommend On March 22, 1995, AMS published preempt or supersede any other program to the Secretary that no modification be in the Federal Register (60 FR 15082) a organized and operated under the laws made. proposed rule adjusting representation of the United States relating to soybean Section 1220.201(d) of the Order on the Board and adjusting the number promotion, research, consumer provides that at the end of each 3 year of Board meetings required. industry, or industry information. One period, the Secretary must review the The proposed rule was published exception in the Act concerns volume of production of each unit and with a request for comments to be assessments collected by Qualified State adjust the boundaries of any unit and submitted by April 21, 1995. Soybean Boards (QSSBs). This the number of Board members from The Department received four written exception provides that, in order to each such unit as necessary to conform comments. The comments and our ensure adequate funding of the with the criteria set forth in responses follow: operations of QSSBs under the Act, no § 1220.201(e): (1) To the extent The South Carolina Soybean Board State law or regulation may limit or practicable, States with annual average (South Carolina Board) and the Georgia have the effect of limiting the full soybean production of less than Agricultural Commodity Commission amount of assessments that a QSSB in 3,000,000 bushels shall be grouped into for Soybeans (Georgia Commission) that State may collect, and which is geographically contiguous units, each of objected to the proposed authorized to be credited under the Act. which has a combined production level reapportionment because it would Another exception concerns certain equal to or greater than 3,000,000 reduce Board membership for each State referenda conducted during specified bushels, and each such group shall be by one seat. Both assert that the periods by a State relating to the entitled to at least one member on the Department did not adhere directly to continuation or termination of a QSSB Board; (2) units with at least 3,000,000 the Act and Order by using the 1989– or State soybean assessment. bushels, but fewer than 15,000,000 1993 crop production data to adjust This action has also been reviewed bushels shall be entitled to one Board representation on the Board. Based on under the Regulatory Flexibility Act (5 member; (3) units with 15,000,000 their interpretation they suggest that the U.S.C. 601 et seq.). This final rule bushels or more but fewer than crop production years used in the adjusts representation on the Board to 70,000,000 bushels shall be entitled to proposed reapportionment should be reflect changes in production levels that two Board members; (4) units with 1988–1992. The South Carolina Soybean have occurred since the Board was 70,000,000 bushels or more but fewer Association’s (Association) and the appointed in 1991. It also decreases the than 200,000,000 bushels shall be Georgia Soybean Association’s 29962 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations (Association) comments also objected to Board and should be made effective No. the proposed reapportionment. upon publication in order to begin the Unit of The Department decision to use the 1995 nomination and appointment mem- crop production years 1989–1993 was process and to allow the Board to bers based on section 1969(b)(2)(E) of the Act schedule fiscal year 1995 meetings Eastern Region (New York, Massa- and § 1220.201 of the Order which accordingly. chusetts, Connecticut, Florida, provides that at the end of each 3 year Rhode Island, Vermont, New Hamp- period starting on the effective date of List of Subjects in 7 CFR Part 1220 shire, Maine, West Virginia, District the Order (July 9, 1991) the Secretary Agricultural research, Reporting and of Columbia, and Puerto Rico) ...... 1 Western Region (Montana, Wyoming, shall review the volume of production recordkeeping requirements, Soybeans. of each State or unit and shall adjust the Colorado, New Mexico, Idaho, Utah, number of Board members to conform For the reasons set forth in the Arizona, Washington, Oregon, Ne- with the volume of production specified preamble, 7 CFR is amended as follows: vada, California, Hawaii, and Alas- in the Act and Order. The Act and Order ka) ...... 1 also state that average annual soybean PART 1220ÐSOYBEAN PROMOTION, production shall be determined by using RESEARCH, AND CONSUMER * * * * * 3. In § 1220.212, paragraph (a) is the average of the production for the INFORMATION revised to read as follows: State or unit over the five previous years, excluding the crops in which 1. The authority citation for 7 CFR § 1220.212 Duties. production was the highest and lowest. part 1220 continues to read as follows: * * * * * Accordingly, in July of 1994, at the Authority: 7 U.S.C. 6301–6311. (a) To meet not less than three times end of the first 3 year period, the annually, or more often if required for Department reviewed the volume of 2. Section 1220.201 is amended by the Board to carry out its production for the required 5 years. The revising the section heading and responsibilities pursuant to this subpart. five previous years data available in July paragraph (a), removing paragraph (f), * * * * * 1994 were 1989–1993. Since the and redesignating paragraph (g) as Dated: June 1, 1995. commenters’ assertions are not paragraph (f) as follows: Lon Hatamiya, consistent with the requirements of the Act and Order, no change is being made § 1220.201 Membership of board. Administrator. [FR Doc. 95–13921 Filed 6–6–95; 8:45 am] in this final rule. (a) For the purposes of nominating BILLING CODE 3410±02±P The South Carolina Board and the and appointing producers to the Board, Georgia Commission argue that the United States shall be divided into reapportionment of the Board should 30 geographic units and the number of 7 CFR Part 1230 have been made effective with the 1994 Board members from each unit, subject appointments to the Board. The two to paragraphs (d) and (e) of this section RIN 0581±AB36 State Associations commented in shall be as follows: [No. LS±94±010] support of this position. To ensure sufficient time for No. Pork Promotion, Research, and Departmental clearance and Unit of Consumer Information Act of 1985Ð appointment by December, the mem- Increase in Assessment Rate nomination and selection process for bers Board appointment has been initiated AGENCY: Agricultural Marketing Service, prior to July each year. Thus, the Illinois ...... 4 USDA. Iowa ...... 4 nominations for 1994 appointments by ACTION: Final rule. the Secretary had already been Minnesota ...... 3 Indiana ...... 3 submitted based on the allocation of SUMMARY: Pursuant to the Pork Missouri ...... 3 Board seats established by the initial Promotion, Research, and Consumer Ohio ...... 3 Order when the reapportionment Information Act of 1985 (Act) and the Arkansas ...... 3 Pork Promotion, Research, and process began in July of 1994. Also, in Nebraska ...... 3 order for the appointments to be made Consumer Information Order (Order) Mississippi ...... 2 thereunder, this final rule increases the under a revised allocation based on Kansas ...... 2 reapportionment, a final rule must be rate of assessment of 0.35 percent of Louisiana ...... 2 market value of porcine animals to 0.45 promulgated which establishes the new South Dakota ...... 2 percent; and adjusts the amount of allocation of Board seats. Consequently, Tennessee ...... 2 assessment per pound due on imported the 1995 appointments rather than 1994 North Carolina ...... 2 pork and pork products to reflect the appointments are the first appointments Kentucky ...... 2 assessment rate increase of 0.10 percent which can be made under this Michigan ...... 2 and the decrease in the 1994 average reapportionment. Accordingly, no Virginia ...... 2 price for domestic barrows and gilts. change is being made in this final rule. Maryland ...... 2 The assessment increase and the Effective Date Wisconsin ...... 2 adjustment in assessments on imported Georgia ...... 1 pork and pork products will increase Pursuant to 5 U.S.C. 553 it is found South Carolina ...... 1 annual funding of the promotion, and determined that good cause exists Alabama ...... 1 for not postponing the effective date of North Dakota ...... 1 research, and consumer information the action until 30 days after Delaware ...... 1 program by an estimated $10 million to publication of this rule in the Federal Texas ...... 1 $12 million over a 12-month period. Register. This rule adjusts Pennsylvania ...... 1 EFFECTIVE DATE: September 3, 1995. representation on the Board and reduces Oklahoma ...... 1 ADDRESSES: Ralph L. Tapp, Chief; the required number of meetings of the New Jersey ...... 1 Marketing Programs Branch; Livestock Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29963 and Seed Division; Agricultural assessment on imported pork and pork purchasers of feeder pigs, slaughter Marketing Service (AMS), USDA; P.O. products results in an estimated hogs, and breeding stock shall collect an Box 96456, Room 2606–S; Washington, increase in assessments of $10 million assessment on these animals if DC 20090–6456. to $12 million over a 12-month period. assessments are due. The Order further FOR FURTHER INFORMATION CONTACT: However, the gross market value of all provides that for the purpose of Ralph L. Tapp, Chief, Marketing swine marketed in the United States collecting and remitting assessments Programs Branch, 202/720–1115. during 1993 exceeded $10.6 billion. The persons engaged as a commission economic impact of the assessments merchant, auction market or livestock SUPPLEMENTARY INFORMATION: will not be a significant part of the total market in the business of receiving such Executive Orders 12866 and 12778 and market value of swine. porcine animals for sale on commission Regulatory Flexibility Act This rule also adjusts importer for or on behalf of a producer shall be assessments to reflect the increase in the deemed to be a purchaser. This rule has been determined to be assessment rate from 0.35 to 0.45 The Order requires importers of not significant for purposes of Executive percent and to reflect a decrease in the porcine animals to pay the U.S. Customs Order 12866, and therefore has not been 1994 average market price for domestic Service (USCS), upon importation, the reviewed by the Office of Management barrows and gilts. The combined effect assessment of 0.35 percent of the and Budget. of the assessment rate increase and the porcine animal’s declared value and This final rule has been reviewed decrease in the average market price importers of pork and pork products to under Executive Order 12778, Civil increases the assessments on imported pay USCS, upon importation, the Justice Reform. This final rule is not pork and pork products subject to assessment of 0.35 percent of the market intended to have a retroactive effect. assessments by two- to four-hundredths value of the live porcine animals from The Act states that the statute is of a cent per pound, or as expressed in which such pork and pork products intended to occupy the field of cents per kilogram, four- to nine- were produced. promotion and consumer education hundredths of a cent per kilogram. The procedures for collection and involving pork and pork products and of Adjusting the assessments on imported remittance of assessments are specified obtaining funds thereof from pork pork and pork products would result in in § 1230.71 of the Order. producers and that the regulation of an estimated increase in assessments of Pursuant to section 1620 of the Act, such activity (other than a regulation or $175,000 over a 12-month period. the assessment rate of 0.25 percent of requirement relating to a matter of Accordingly, the Administrator of the market value of porcine animals, public health or the provision of State AMS has determined that this action pork, or pork products sold or imported or local funds for such activity) that is will not have a significant economic was established in the initial Order and in addition to or different from the Act impact on a substantial number of small was changed to 0.35 percent on may not be imposed by a State. entities. December 1, 1991. Based on the The Act provides that administrative The information collection assessment rate of 0.35 percent, the total proceedings must be exhausted before requirements contained in part 1230, annual assessments collected during parties may file suit in court. Under subparts A and B, have been previously 1994 were approximately $42 million. section 1625 of the Act, a person subject approved by the Office of Management Assessments on imported pork and pork to an order may file a petition with the and Budget (OMB) and have been products accounted for about $1.5 Secretary stating that such order, a assigned OMB Control Number 0851– million of the total. provision of such order or an obligation 0151. The Act and § 1230.71 of the Order imposed in connection with such order The Act (7 U.S.C. 4801–4819) contain provisions for increasing the is not in accordance with law; and approved December 23, 1985, initial rate of assessment. Section requesting a modification of the order or authorized the establishment of a 1620(b)(2) of the Act provides that the an exemption from the order. Such national pork promotion, research, and rate of the assessment in the initial person is afforded the opportunity for a consumer information program. The Order may be increased by not more hearing on the petition. After the program is funded by an assessment rate than 0.1 percent per year upon hearing, the Secretary would rule on the of 0.35 percent of the market value of all recommendation of the National Pork petition. The Act provides that the porcine animals marketed in the United Producers Delegate Body (Delegate district court of the United States in the States and an equivalent amount of Body) whose producer and importer district in which the person resides or assessment on imported porcine members are appointed annually by the does business has jurisdiction to review animals, pork, and pork products. The Secretary. The Act further provides that the Secretary’s determination, if a final Order establishing a pork the rate of assessment may be increased complaint is filed not later than 20 days promotion, research, and consumer by no more than 0.1 percent annually after the date such person receives information program was published in not to exceed 0.5 percent of the market notice of such determination. the September 5, 1986, issue of the value unless the Delegate Body Information available to the Federal Register (51 FR 31898; as recommends a greater increase and the Department indicates that nearly all of corrected, at 51 FR 36383, and amended increase is approved in a referendum. the estimated 278,000 pork producers at 53 FR 1909, 53 FR 30243, 56 FR 4, The 1994 Delegate Body, at its annual and many of the estimated 200 and 56 FR 51635). Assessments began meeting on March 3–5, 1994, in Kansas importers can be classified as small on November 1, 1986. City, Missouri, voted overwhelmingly to entities. This final rule increases the The Order requires that producers pay recommend to the Secretary that the rate rate of the assessment from 0.35 percent to the Board an assessment of 0.35 of assessment of 0.35 percent be of the market value of porcine animals percent of the market value of each increased to 0.45 percent. There were to 0.45 percent, and increases the cents porcine animal upon sale. However, for 170 Delegate Body members appointed per pound and per kilogram of purposes of collecting and remitting by the Secretary in 1994. At the Delegate assessments on imported pork and pork assessments, porcine animals are Body meeting 154 delegates were products subject to assessment. divided into three separate categories (1) present during voting and voted 37,226 Adjusting the rate of assessment from feeder pigs, (2) slaughter hogs, and (3) valid share votes. States and importers 0.35 to 0.45 percent and increasing the breeding stock. The Order specifies that are allotted one share per $1,000 of the 29964 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations aggregated amount of assessment imported pork and pork products is of imported pork and pork products collected. There were 31,089 share votes converted to a carcass weight equivalent available for the period January 1, 1994, cast in favor of the 0.1 percent increase. by utilizing conversion factors which through September 30, 1994, the On February 15, 1995, AMS are published in the USDA Statistical increase in the assessment amounts published in the Federal Register (60 Bulletin No. 616 ‘‘Conversion Factors would result in an estimated $175,000 FR 8579) a proposed rule to increase the and Weights and Measures.’’ These increase in importer assessments over a rate of assessment of 0.35 percent of conversion factors take into account the 12-month period. market value of porcine animals to 0.45 removal of bone, weight lost in cooking The Department’s review of the percent; and adjust the amount of or other processing, and the nonpork supplementary information revealed assessment per pound due on imported components of pork products. Secondly, that the location of the March 3–5, 1994, pork and pork products to reflect the the carcass weight equivalent is Delegate Body meeting was incorrectly assessment rate increase of 0.10 percent converted to a live animal equivalent listed as Denver, Colorado. The meeting and the decrease in the 1994 average weight by dividing the carcass weight was held in Kansas City, Missouri, and price for domestic barrows and gilts. equivalent by 70 percent, which is the the supplementary information has been The proposed rule was published with average dressing percentage of porcine corrected. a request for comments by March 17, animals in the United States. Thirdly, The Department received 87 1995. the equivalent value of the live porcine comments after the publication of the The following example will illustrate animal is determined by multiplying the proposed rule. Thirty-four commenters, the effect of the increase of 0.10 percent live animal equivalent weight by an including the National Pork Board, the on a per head basis. Based on the 1994 annual average market price for barrows National Pork Producers Council, 23 annual average five market price of and gilts as reported by the USDA, State pork producer associations $39.57 per hundredweight for barrows AMS, LGMN Branch. The annual representing over 62,000 producers and gilts with an average weight of 248 average price, which was based on price which represents a significant pounds as reported in the USDA’s data from six major markets, is now proportion of the estimated State publication ‘‘Livestock, Meat, and Wool based on only five markets as one of the producer association members Weekly Summary and Statistics’’ six markets—St. Louis—closed in 1994. nationwide, and 9 individuals published in January 1995, the total This average price is published on a supported the rate increase stating that assessment per head at the assessment yearly basis during the month of January it would provide additional rate of 0.45 percent would be 44 cents. in the LGMN Branch’s publication opportunities for enhanced returns to At the assessment rate of 0.35 percent, ‘‘Livestock, Meat, and Wool Weekly pork producers and it is consistent with the total per-head assessment would be Summary and Statistics.’’ Finally, the industry goals and plans. Fifty-one 34 cents. Based on the Delegate Body’s equivalent value is multiplied by the individual commenters did not support recommendation in accordance with applicable assessment rate of 0.45 the rate increase, citing the decline in § 1230.71(d) of the Order, this final rule percent due on imported pork and pork live hog prices, disfavor with the increases the rate of assessment from products. The end result is expressed in program and suggesting that the current 0.35 to 0.45 percent, which would an amount per pound for each type of rate was high enough or that there increase assessments collected $10 pork or pork product. To determine the should be no assessment at all. Two million to $12 million over a 12-month amount per kilogram for pork and pork commenters did not specifically address period. products subject to assessment under the proposed assessment rate increase; This final rule also increases the the Act and Order, the cent-per-pound however they both believed the pork amount of assessment on all of the assessments are multiplied by a metric promotion program was successful. imported pork and pork products conversion factor 2.2046 and carried to One of the two commenters argued subject to assessment as published in the sixth decimal. that the comment period of 30 days was the Federal Register as a final rule The formula in the preamble for the not sufficient time for producers to September 8, 1994, and effective on Order at 51 FR 31901 contemplated that review the proposed rule and submit October 11, 1994 (59 FR 46323). This it would be necessary to recalculate the comments since most pork producers do adjustment reflects the increase in the equivalent live animal value of not receive the Federal Register. The assessment rate to 0.45 percent and imported pork and pork products to Department believes that a 30 day would be consistent with the decrease reflect increases in the rate of comment period is sufficient to allow in the annual average price of domestic assessments or changes in the annual for public comment. A press release was barrows and gilts for calendar year 1994 average price of domestic barrows and issued when the proposed rule was as reported by USDA, AMS, Livestock gilts to maintain equity of assessments published to facilitate timely and Grain Market News (LGMN) between domestic porcine animals and notification of interested parties of their Branch. This adjustment in assessments imported pork and pork products. opportunity to comment. The press will make the equivalent market value Substituting the assessment rate of release also indicated that interested of the live porcine animal from which 0.45 percent in the formula and using persons could request copies of the the imported pork and pork products the 1994 average annual five market proposed rule either by the phone or were derived reflect the recent decrease price for domestic barrows and gilts of mail and listed the phone number and in the market value of domestic porcine $39.57 per hundredweight results in an address. The other commenter animals, thereby promoting increase in assessments for all the expressed concern about the magnitude comparability between the importer and Harmonized Tariff Systems (HTS) of the price spread between the domestic assessments. numbers in the table in § 1230.110, 59 wholesale price and retail price for The methodology for determining the FR 46323; September 8, 1994, of an pork. per-pound amounts for imported pork amount equal to two- to four- The Department carefully considered and pork products was described in the hundredths of a cent per pound, or as the comments, the recommendation of supplementary information expressed in cents per kilogram, four- to the Delegate Body and additional accompanying the Order and published nine-hundredths of a cent per kilogram. information regarding the usefulness of in the September 5, 1986, Federal Based on Department of Commerce, the proposed assessment rate increase. It Register at 51 FR 31901. The weight of Bureau of Census, data on the volume has been determined that the additional Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29965 revenues which will be gained from the SubpartÐ[Amended] § 1230.112 Rate of assessment. increase will be useful in strengthening In accordance with § 1230.71(d) the the position of the pork industry in the 2. Subpart B—Rules and Regulations rate of assessment shall be 0.45 percent marketplace and in maintaining, is amended by revising § 1220.110 to of market value. developing, and expanding markets for read as follows: Dated: June 1, 1995. pork and pork products. § 1230.110 Assessments on imported pork Lon Hatamiya, The increase in total annual and pork products. Administrator. assessments, resulting from the increase (a) The following HTS categories of [FR Doc. 95–13920 Filed 6–6–95; 8:45 am] in the assessment rate from .35 to .45 BILLING CODE 3410±02±P percent, will enable the pork promotion imported live porcine animals are and research program to continue the subject to assessment at the rate funding pattern that has helped keep specified. FEDERAL RESERVE SYSTEM pork competitive with other meats and Live porcine poultry since 1987. The increase will animals Assessment also provide the necessary funding to 12 CFR Part 202 finance the pork industry’s long range 0103.10.0000 ...... 0.45 percent Cus- [Regulation B; Docket No. R±0865] strategic plan which will address issues toms Entered Value. and initiatives that pork producers and Equal Credit Opportunity importers believe will have the most 0103.91.0000 ...... 0.45 percent Cus- toms Entered AGENCY: Board of Governors of the significant economic impact on the Value. future of the industry. These issues 0103.92.0000 ...... 0.45 percent Cus- Federal Reserve System. include environmental management, toms Entered ACTION: Final rule; official staff odor control, animal care, swine health, Value. interpretation. and food safety. The increase in annual assessment will provide the additional SUMMARY: The Board is revising its (b) The following HTS categories of official staff commentary to Regulation funding necessary to help producers imported pork and pork products are take full advantage of the enhanced B (Equal Credit Opportunity). The subject to assessment at the rates commentary applies and interprets the foreign trade opportunities created by specified. NAFTA and GATT. In voting for the requirements of Regulation B and is a substitute for individual staff assessment rate increase, the National Assessment Pork and pork interpretations. The revisions to the Pork Producers Delegate Body believed products that the increase was necessary to make cents/lb cents/kg commentary provide guidance on sure all producers have access to the several issues including disparate 0203.11.0000 ...... 25 .551150 treatment, special purpose credit latest research, technology, and 0203.12.1010 ...... 25 .551150 information available to help them programs, credit scoring systems, and 0203.12.1020 ...... 25 .551150 marital status discrimination. remain competitive in a rapidly 0203.12.9010 ...... 25 .551150 changing industry. 0203.12.9020 ...... 25 .551150 EFFECTIVE DATE: June 5, 1995. Accordingly, this final rule adopts the 0203.19.2010 ...... 30 .661380 FOR FURTHER INFORMATION CONTACT: Jane increase in the assessment rate from 0203.19.2090 ...... 30 .661380 Jensen Gell, Sheilah Goodman, Natalie 0.35 percent of market value of porcine 0203.19.4010 ...... 25 .551150 E. Taylor, or Manley Williams, Staff 0203.19.4090 ...... 25 .551150 animals to 0.45 percent as proposed; Attorneys, Division of Consumer and 0203.21.0000 ...... 25 .551150 Community Affairs, Board of Governors and the adjustment in the amount of 0203.22.1000 ...... 25 .551150 assessment per pound due on imported of the Federal Reserve System, at (202) 0203.22.9000 ...... 25 .551150 452–3667 or 452–2412; for the hearing pork and pork products to reflect the 0203.29.2000 ...... 30 .661380 assessment rate increase of 0.10 percent 0203.29.4000 ...... 25 .551150 impaired only, contact Dorothea and the decrease in the 1994 average 0206.30.0000 ...... 25 .551150 Thompson, Telecommunications Device price for domestic barrows and gilts as 0206.41.0000 ...... 25 .551150 for the Deaf, (202) 452–3544. proposed. 0206.49.0000 ...... 25 .551150 SUPPLEMENTARY INFORMATION: 0210.11.0010 ...... 25 .551150 List of Subjects in 7 CFR Part 1230 0210.11.0020 ...... 25 .551150 I. Background 0210.12.0020 ...... 25 .551150 Administrative practice and The Equal Credit Opportunity Act 0210.12.0040 ...... 25 .551150 (ECOA), 15 U.S.C. 1691–1691f, makes it procedure, Advertising, Agriculture 0210.19.0010 ...... 30 .661380 unlawful for creditors to discriminate in research, Marketing agreement, Meat 0210.19.0090 ...... 30 .661380 and meat products, Pork and pork 1601.00.2010 ...... 35 .771610 any aspect of a credit transaction on the products. 1601.00.2090 ...... 35 .771610 basis of sex, marital status, age, race, 1602.41.2020 ...... 38 .837748 national origin, color, religion, receipt of For the reasons set forth in the 1602.41.2040 ...... 38 .837748 public assistance, or the exercise of preamble, 7 CFR part 1230 is amended 1602.41.9000 ...... 25 .551150 rights under the Consumer Credit as set forth below: 1602.42.2020 ...... 38 .837748 Protection Act. The Board’s Regulation 1602.42.2040 ...... 38 .837748 B (12 CFR Part 202) implements this PART 1230ÐPORK PROMOTION, 1602.42.4000 ...... 25 .551150 statute. In addition, the Board’s official RESEARCH, AND CONSUMER 1602.49.2000 ...... 35 .771610 staff commentary (12 CFR Part 202 INFORMATION 1602.49.4000 ...... 30 .661380 (Supp. I)) interprets the regulation. The commentary provides general guidance 1. The authority citation for 7 CFR 3. Subpart B–Rules and Regulations is in applying the regulation to various Part 1230 continues to read as follows: amended by revising § 1230.112 to read credit transactions and is updated Authority: 7 U.S.C. 4801–4819. as follows: periodically. 29966 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations II. Summary of Revisions to the comment 6(a)–2. Commenters believed a new appraisal report in evaluating the Commentary that the proposal’s reference to disparate request. In December 1994 (59 FR 67235, impact was attempting to describe a Section 202.5a does not apply if a December 29, 1994), the Board proposed highly complex area of law in a consumer requests renewal of existing amendments to the staff commentary to condensed manner. The Board has credit and the creditor does not obtain Regulation B. The Board received nearly deleted the proposed reference to the a new appraisal. Commenters supported 100 letters on the proposal. After standards of proof and burdens of this clarification. reviewing the comment letters and upon persuasion the parties must meet, and 5a(a)(2)(i) Notice further analysis, the Board is adopting instead has added a reference to comment 6(a)–2. The Board proposed comment final amendments to the staff 5a(a)(2)(i)–1 to clarify the rule for credit commentary. Section 202.4—General Rule Prohibiting involving more than one applicant, Section 202.2—Definitions Discrimination which parallels the rule in section 202.9 Comment 4–1 addresses the legal concerning notices of action taken 2(c)(1)(i) Application for Extension of concept known as ‘‘disparate where there is more than one applicant. Credit treatment,’’ which is a particular type of Commenters supported this The Board proposed a new comment discrimination. The proposed clarification. 2(c)(2)(iii)–2 to address court decisions amendment clarified that disparate 5a(a)(2)(ii) Delivery that misapplied portions of that section. treatment might be found even absent a Commenters suggested that to the extent conscious will to discriminate. Some The Board proposed a new comment the comment defined types of adverse commenters expressed concern that the 5a(a)(2)(ii)–1 to clarify that in all cases action, it more clearly fit under section proposal meant that ‘‘intent,’’ as that creditors may seek reimbursement for 202.2(c)(1)(i). The Board agrees. The term has been interpreted by courts in photocopy and postage costs incurred in Board is adopting comment 2(c)(1)(i)–1 discrimination cases, is not an element providing the copy of the appraisal to clarify that the refusal to refinance or of disparate treatment. The Board has report unless prohibited by state or extend the term of a business or other revised the comment to clarify that other law, or unless the consumer has loan is adverse action if the applicant treating individuals differently is not already paid for the report. applied in accordance with the unlawful per se. However, treating The proposal provided that if the creditor’s procedures. individuals differently on a prohibited creditor does not otherwise charge for basis is unlawful discrimination the report, as in ‘‘no closing cost’’ loans, 2(c)(2)(iii) Application for Increase in the creditor may not require payment Available Credit (‘‘disparate treatment’’) if there is no credible, nondiscriminatory reason that solely from those consumers who The Board proposed comment explains the difference in treatment. In request a copy of the report. 2(c)(2)(iii)–2 to clarify that a denial of an the examples given, the differential Commenters were divided on this issue. application to increase available credit treatment would constitute disparate Some noted that these loans benefit or for a change in terms is adverse treatment if the creditor lacked a consumers by reducing the upfront costs action. Many commenters expressed legitimate nondiscriminatory reason for of applying for credit. Several concern that the phrase ‘‘change in its action, or if the asserted reason was commenters believed that a prohibition terms’’ was overly broad, requiring a found to be a pretext for discrimination. on reimbursement for an appraisal creditor to provide an adverse action report for ‘‘no closing cost’’ loans would notice in a variety of situations in which Section 202.5a—Rules on Providing have a chilling effect on creditors’ it is not now required. The Board has Appraisal Reports willingness to offer these products. changed the comment heading and has 5a(a) Providing Appraisals Commenters said that for no-cost loans narrowed its scope to refer only to that close, creditors who waive closing applications to increase credit. The Board proposed comment 5a(a)– costs (including the cost of an appraisal) 1 to clarify that section 202.5a applies recover those costs over the term of the 2(p) Empirically Derived and Other to applications for credit to be secured loan; they do not recover the cost of the Credit Scoring Systems by a dwelling, whether the credit is for appraisal for no-cost loans that are The Board has adopted comment a business or a consumer purpose. denied or withdrawn. Commenters 2(p)–3, regarding pooled data scoring Commenters generally supported the requested that in such cases, the Board systems, as proposed. proposed comment. It was suggested allow creditors to charge for the cost of The proposed comment 2(p)–4 that the Board should eliminate a the appraisal when applicants ask for a clarified that a credit scoring system— reference to the ‘‘consumer’s’’ dwelling, copy of the report. even if ‘‘empirically derived, given the definition of ‘‘dwelling’’ used The statute gives a creditor the right demonstrably and statistically sound’’— in sections 202.5a(a) and (c). It was to require an applicant to reimburse the is subject to review under the ECOA and noted that ‘‘consumer’s dwelling’’ could creditor for the cost of the appraisal. Regulation B. When a scoring system is be read as both more limited than Upon further analysis, the Board used in conjunction with individual ‘‘dwelling’’ (including only transactions believes that creditors may collect the discretion, disparate treatment could that involve a consumer’s dwelling, as costs of an appraisal unless the still occur. In addition, a system could ‘‘consumer’’ is defined elsewhere) and consumer has already paid for the have a disparate impact on a prohibited more expansive (any dwelling, not report. basis, and could be challenged. Whether limited to one-to-four family dwellings). such a challenge would be successful The Board has revised the comment 5a(c) Definitions depends on a variety of factors, as accordingly. New comments 5a(c)–1 and 5a(c)–2 commenters noted. The Board proposed comment 5a(a)– address the scope of the term ‘‘appraisal More generally, commenters 2 to clarify that section 202.5a applies report.’’ Under the proposal, publicly questioned how the standards set out in to a request for renewal of an existing available listings of valuations for the proposed comment related to the extension of credit secured by a dwellings, such as published home sales discussion of disparate impact in dwelling if the creditor obtains and uses prices or mortgage amounts, are not Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29967 covered. The appraisal rules guard Section 202.8—Special-Purpose Credit Appendix C of Supplement I to Part against discriminatory evaluations of a Programs 202—Sample Notification Forms dwelling’s value. The Board believes 8(a) Standards for Programs The Board proposed a comment to that publicly available reports of home Appendix C to provide examples of sales prices or tax assessments, among The Board proposed comments 8(a)– additions that may be made to Model others, are unlikely to be influenced by 5 and –6 to clarify the requirements that Form C–9. The commenters supported the type of subjectivity the law is for-profit organizations must meet to the comment and the Board has adopted intended to eliminate. establish special-purpose credit it as proposed. Commenters generally supported the programs under section 202.8(a). clarifications to the definitions. The List of Subjects in 12 CFR Part 202 Board has adopted the comments as Commenters generally supported both Aged, Banks, banking, Civil rights, proposed. comments. In response to some Credit, Federal Reserve System, Marital commenters’ concerns, the Board has status discrimination, Penalties, Section 202.6—Rules Concerning added language to comment 8(a)–5 Religious discrimination, Reporting and Evaluation of Applications clarifying that the program can be recordkeeping requirements, Sex 6(a) General Rule Concerning Use of designed to benefit a class of people discrimination. Information who would otherwise receive credit on For the reasons set forth in the less favorable terms, as well as those preamble, the Board is amending 12 The Board did not propose who would be denied credit. CFR part 202 as set forth below: commentary under this section. In addressing the issue of disparate impact Two issues have been clarified in comment 8(a)–6. First, some PART 202ÐEQUAL CREDIT under proposed comment 2(p)–4, OPPORTUNITY (REGULATION B) however, many commenters discussed commenters were concerned about the comment 2 to this section. The statement that the plan should specify 1. The authority citation for part 202 commenters uniformly expressed the length of time that it will be in effect continues to read as follows: concern, in regard to this comment and and that it be reevaluated after that time. Authority: 15 U.S.C. 1691–1691f. comment 2(p)–4, about the Board’s Some commenters said that this added articulation of the standards of proof regulatory burden. The Board believes 2. In Supplement I to Part 202, and burdens of persuasion under a that because special purpose credit Section 202.2—Definitions, is amended disparate impact analysis (sometimes programs are designed to fulfill a as follows: a. Under 2(c) Adverse action., referred to as the effects test). The Board particular need, they must be preceding 1. Move from service area., a recognizes that this is an evolving area reevaluated periodically to determine if new paragraph heading 2(c)(1)(i), a new of law, one in which creditors and there is a continuing need for the paragraph 1., and a new paragraph consumers alike would benefit from program. The comment has been heading 2(c)(1)(ii) are added; more specificity. However, given that amended to reflect this position. b. Under Paragraph (2)(c)(2)(iii), a the Board did not propose any Second, the reference to avoiding a new paragraph 2. is added; and amendments to this section of the negative effect on individuals who are c. Under 2(p), the paragraph heading commentary, the only change to the not in the class the program was for 2(p) is revised and new paragraphs existing commentary is the addition of designed to benefit, by denying them 3. and 4. are added. a reference to the Civil Rights Act of rights or opportunities they might The additions and revision read as 1991, which codifies the standards used otherwise have, has been deleted follow: for disparate impact under Title VII. The because it is not clear precisely how this Supplement I to Part 202—Official Staff Board will consider addressing these condition applies in the credit context. issues further in future commentary Interpretations proposals. Section 202.9—Notifications * * * * * 6(b)(1) Prohibited Basis—Marital Status The Board proposed comment 9–5 to Section 202.2 Definitions The Board proposed to revise address when a creditor must send a 2(c) Adverse action. comment 6(b)(1)–1 to clarify that if a notice of action taken under Paragraph 2(c)(1)(i) prequalification, preapproval, and creditor chooses to offer joint credit, the 1. Application for credit. A refusal to creditor generally may not take the similar programs. The comment refinance or extend the term of a business or applicants’ marital status into account clarified that the guidance provided in other loan is adverse action if the applicant in credit evaluations, except to the the commentary to section 202.2(f), applied in accordance with the creditor’s extent necessary for determining rights addressing applications and inquiries, procedures. and remedies under state law. applies to all types of inquiries, Paragraph 2(c)(1)(ii) Commenters generally supported this including prequalification and 1. Move from service area. * * * preapproval programs. Thus, if a clarification. * * * * * creditor—in giving information to a A few commenters requested Paragraph 2(c)(2)(iii) clarification on how the commentary consumer about a prequalification or applied to other parties such as preapproval program—decides it will * * * * * 2. Application for increase in available cosigners or guarantors. Creditors are not grant credit, and communicates this to the consumer, the creditor has treated credit. A refusal or failure to authorize an not required to combine the debts and account transaction at the point of sale or incomes of two parties when one of the inquiry as an application (by virtue loan is not adverse action, except when the them is a cosigner or guarantor for the of having made a credit decision) and refusal is a denial of an application, other. (Comment 7(d)(5)–1 provides must comply with the notification rules submitted in accordance with the creditor’s guidance on standards that creditors in § 202.9. Commenters generally procedures, for an increase in the amount of may use in requesting additional supported the guidance provided in the credit. parties.) proposal. * * * * * 29968 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 2(p) Empirically derived and other credit 2. Renewals. If an applicant requests that Section 202.6—Rules Concerning Evaluation scoring systems. a creditor renew an existing extension of of Applications * * * * * credit, and the creditor obtains a new 6(a) General rule concerning use of 3. Pooled data scoring systems. A scoring appraisal report to evaluate the request, this information. section applies. This section does not apply system or the data from which to develop * * * * * such a system may be obtained from either to a renewal request if the creditor uses the appraisal report previously obtained in 2. Effects test. The effects test is a judicial a single credit grantor or multiple credit doctrine that was developed in a series of connection with the decision to grant credit. grantors. The resulting system will qualify as employment cases decided by the Supreme 5a(a)(2)(i) Notice. an empirically derived, demonstrably and Court under Title VII of the Civil Rights Act 1. Multiple applicants. When an statistically sound, credit scoring system of 1964 (42 U.S.C. 2000e et seq.), and the application that is subject to this section provided the criteria set forth in paragraph burdens of proof for such employment cases (p)(1) (i) through (iv) of this section are met. involves more than one applicant, the notice were codified by Congress in the Civil Rights 4. Effects test and disparate treatment. An about the appraisal report need only be given Act of 1991 (42 U.S.C. 2000e-2). * * * empirically derived, demonstrably and to one applicant, but it must be given to the statistically sound, credit scoring system may primary applicant where one is readily * * * * * include age as a predictive factor (provided apparent. Paragraph 6(b)(1) that the age of an elderly applicant is not 5a(a)(2)(ii) Delivery. 1. Prohibited basis—marital status. * * * assigned a negative factor or value). Besides 1. Reimbursement. Creditors may charge Except to the extent necessary to determine age, no other prohibited basis may be used for photocopy and postage costs incurred in rights and remedies for a specific credit as a variable. Generally, credit scoring providing a copy of the appraisal report, transaction, a creditor that offers joint credit systems treat all applicants objectively and unless prohibited by state or other law. If the may not take the applicants’ marital status thus avoid problems of disparate treatment. consumer has already paid for the report—for into account in credit evaluations. Because it In cases where a credit scoring system is used example, as part of an application fee—the is unlawful for creditors to take marital status in conjunction with individual discretion, creditor may not require additional fees for into account, creditors are barred from disparate treatment could conceivably occur the appraisal (other than photocopy and applying different standards in evaluating in the evaluation process. In addition, neutral postage costs). married and unmarried applicants. In making factors used in credit scoring systems could 5a(c) Definitions. credit decisions, creditors may not treat joint nonetheless be subject to challenge under the 1. Appraisal reports. Examples of appraisal applicants differently based on the existence, effects test. (See comment 6(a)–2 for a reports are: the absence, or the likelihood of a marital discussion of the effects test). i. A report prepared by an appraiser relationship between the parties. * * * * * (whether or not licensed or certified), * * * * * 3. In Supplement I to part 202, under including written comments and other 6. In Supplement I to Part 202, Section 202.4—General Rule Prohibiting documents submitted to the creditor in Section 202.8—Special Purpose Credit support of the appraiser’s estimate or opinion Discrimination, four new sentences are of value. Programs, under 8(a) Standards for added at the end of paragraph 1. To read ii. A document prepared by the creditor’s programs., new paragraphs 5. and 6. are as follows: staff which assigns value to the property, if added to read as follows: * * * * * a third-party appraisal report has not been * * * * * used. Section 202.4—General Rule Prohibiting iii. An internal review document reflecting Section 202.8—Special Purpose Credit Discrimination that the creditor’s valuation is different from Programs 1. Scope of section. * * * Disparate a valuation in a third party’s appraisal report (8)(a) Standards for Programs treatment on a prohibited basis is illegal (or different from valuations that are publicly * * * * * whether or not it results from a conscious available or valuations such as 5. Determining need. In designing a intent to discriminate. Disparate treatment manufacturers’ invoices for mobile homes). special-purpose program under § 202.8(a), a would be found, for example, where a 2. Other reports. The term ‘‘appraisal for-profit organization must determine that creditor requires a minority applicant to report’’ does not cover all documents relating the program will benefit a class of people provide greater documentation to obtain a to the value of the applicant’s property. who would otherwise be denied credit or loan than a similarly situated nonminority Examples of reports not covered are: would receive it on less favorable terms. This applicant. Disparate treatment also would be i. Internal documents, if a third-party determination can be based on a broad found where a creditor waives or relaxes appraisal report was used to establish the analysis using the organization’s own credit standards for a nonminority applicant value of the property. research or data from outside sources but not for a similarly situated minority ii. Governmental agency statements of including governmental reports and studies. applicant. Treating applicants differently on appraised value. For example, a bank could review Home a prohibited basis is unlawful if the creditor iii. Valuations lists that are publicly Mortgage Disclosure Act data along with lacks a legitimate nondiscriminatory reason available (such as published sales prices or demographic data for its assessment area and for its action, or if the asserted reason is mortgage amounts, tax assessments, and conclude that there is a need for a special- found to be a pretext for discrimination. retail price ranges) and valuations such as purpose credit program for low-income * * * * * manufacturers’ invoices for mobile homes. minority borrowers. 4. In Supplement I to part 202, a new * * * * * 6. Elements of the program. The written plan must contain information that supports Section 202.5a, is added in numerical 5. In Supplement I to Part 202, order to read as follows: the need for the particular program. The plan Section 202.6—Rules Concerning also must either state a specific period of * * * * * Evaluation of Applications, is amended time for which the program will last, or Section 202.5a—Rules on Providing as follows: contain a statement regarding when the Appraisal Reports a. Under 6(a) General rule concerning program will be reevaluated to determine if there is a continuing need for it. 5a(a) Providing appraisals. use of information., the first sentence in 1. Coverage. This section covers paragraph 2. is revised; and * * * * * applications for credit to be secured by a lien b. Under Paragraph 6(b)(1), three new 7. In Supplement I to Part 202, on a dwelling, as that term is defined in sentences are added at the end of Section 202.9—Notifications, a new § 202.5a(c), whether the credit is for a paragraph 1. paragraph 5. is added to read as follows: business purpose (for example, a loan to start * * * * * a business) or a consumer purpose (for The additions and revision read as example, a loan to finance a child’s follow: Section 202.9—Notifications education). * * * * * * * * * * Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29969 5. Prequalification and preapproval home loans bearing rates or fees above By order of the Board of Governors of the programs. Whether a creditor must provide a a certain percentage or amount and on Federal Reserve System, acting through the notice of action taken for a prequalification reverse mortgage transactions. Secretary of the Board, June 1, 1995. or preapproval request depends on the William W. Wiles, creditor’s response to the request, as EFFECTIVE DATE: June 7, 1995. Secretary of the Board. discussed in the commentary to section 202.2(f). For instance, a creditor may treat the FOR FURTHER INFORMATION CONTACT: Jane [FR Doc. 95–13863 Filed 6–6–95; 8:45 am] request as an inquiry if the creditor provides Ahrens, Senior Attorney, or Kyung Cho- BILLING CODE 6210±01±P general information such as loan terms and Miller, Sheilah Goodman, or Kurt the maximum amount a consumer could Schumacher, Staff Attorneys, Division borrow under various loan programs, of Consumer and Community Affairs, SMALL BUSINESS ADMINISTRATION explaining the process the consumer must Board of Governors of the Federal follow to submit a mortgage application and 13 CFR Parts 121 and 124 the information the creditor will analyze in Reserve System, at (202) 452–3667 or reaching a credit decision. On the other 452–2412; for the hearing impaired Small Business Size Regulations; hand, a creditor has treated a request as an only, Dorothea Thompson, Minority Small Business and Captial application, and is subject to the adverse Telecommunications Device for the Ownership Development Assistance action notice requirements of § 202.9 if, after Deaf, at (202) 452–3544. evaluating information, the creditor decides AGENCY: Small Business Administration. that it will not approve the request and SUPPLEMENTARY INFORMATION: ACTION: Final rule. communicates that decision to the consumer. For example, if in reviewing a request for Background SUMMARY: The Small Business prequalification, a creditor tells the consumer Administration (SBA) hereby amends its that it would not approve an application for The regulation that is the subject of the corrections is Regulation Z (12 CFR regulations governing the Minority a mortgage because of a bankruptcy in the Small Business and Capital Ownership consumer’s record, the creditor has denied an part 226), which implements the Truth Development program authorized by application for credit. in Lending Act (15 U.S.C. 1601–1666j). sections 7(j)(10) and 8(a) of the Small * * * * * The act (TILA) requires creditors to Business Act, 15 U.S.C. 636(j)(10), 8. In Supplement I to Part 202, a new disclose credit terms for consumer 637(a). This final rule amends both Appendix C—Sample Notification transactions. The final rule eligibility requirements for and Forms is added at the end to read as implemented the Home Ownership and contractual assistance provisions within follows: Equity Protection Act of 1994 (HOEPA), the 8(a) program. It is designed to * * * * * contained in the Riegle Community streamline the operation of the 8(a) Appendix C—Sample Notification Forms Development and Regulatory program and to ease certain restrictions Improvement Act of 1994 (Pub. L. 103– Form C–9. Creditors may design their own perceived to be burdensome on Program form, add to, or modify the model form to 325, 108 Stat. 2160). Section 152 of the Participants. reflect their individual policies and HOEPA adds a new section 129 to the EFFECTIVE DATE: Except for procedures. For example, a creditor may TILA dealing with certain mortgages § 124.311(a)(2), this rule is effective on want to add: bearing rates or fees above a certain June 7, 1995. i. A telephone number that applicants may percentage or amount. Section 124.311(a)(2) shall be call to leave their name and the address to which an appraisal report should be sent. Need for Correction effective August 7, 1995. It is applicable ii. A notice of the cost the applicant will for all 8(a) requirements accepted by be required to pay the creditor for the As published, the final rule SBA on or after August 7, 1995. appraisal or a copy of the report. implementing new TILA section 129 FOR FURTHER INFORMATION CONTACT: By order of the Board of Governors of the contains errors which could be Michael P. McHale, Deputy Associate Federal Reserve System, acting through the confusing and should be clarified. Administrator for Minority Enterprise Secretary of the Board under delegated Development, (202) 205–6410. Correction of Publication authority, June 1, 1995. SUPPLEMENTARY INFORMATION: On August William W. Wiles, Accordingly, the publication on 30, 1994, SBA published a proposed Secretary of the Board. March 24, 1995, of the final regulation rule in the Federal Register (59 FR [FR Doc. 95–13862 Filed 6–6–95; 8:45 am] (Docket No. R–0858), which was the 44652) to amend both eligibility BILLING CODE 6210±01±P subject of FR Doc. 95–7231, is corrected requirements for and contractual assistance provisions within the SBA’s as follows: section 8(a) program. That proposal 12 CFR Part 226 § 226.31 [Corrected] called for a 30-day comment period which was scheduled to close on [Regulation Z; Docket No. R±0858] On page 15472, in the first column, in September 29, 1994. In response to § 226.31, in paragraph (g), in the third Truth in Lending; Mortgage concerns raised that the 30-day line, the phrase ‘‘annual percentage Disclosures; Correction comment period may not have been a yield’’ is corrected to read ‘‘annual sufficient amount of time to permit AGENCY: Board of Governors of the percentage rate’’. proper and thoughtful public comments, Federal Reserve System. SBA, on October 27, 1994, extended the § 226.32 [Corrected] ACTION: Corrections to final regulation. comment period through November 28, On page 15472, in the second column, 1994. 59 FR 53947. SUMMARY: This document contains in § 226.32, in paragraph (b)(1)(iii), in SBA received a total of 175 comments corrections to the final rule (Docket No. the first and second lines, the phrase in response to its proposed rule. After R–0858) which was published Friday, ‘‘required to be disclosed under’’ is reviewing these comments, SBA now March 24, 1995 (60 FR 15463). The corrected to read ‘‘listed in’’. issues this final rule. amendments to Regulation Z concerned SBA proposed this rule initially in new disclosure requirements on certain order to simplify the operation of the 29970 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 8(a) program, to make clarifying changes (8) It eases the ownership restrictions disadvantage is used to establish to the regulations deemed necessary placed on former Program Participants. eligibility of the CDC-owned concern. through experience, and to permit (9) It streamlines SBA regulations by This rule also makes a technical program participants to proceed in a eliminating provisions dealing with amendment to § 121.401(b) that more entrepreneurial manner, while SBA’s expired authority to grant recognizes that concerns owned by a maintaining a high degree of program exemptions to the requirements of the Community Development Corporation integrity. After considering the Walsh-Healey Act and Miller Act. (CDC), authorized by 42 U.S.C. 9805 et comments received, and after further (10) In response to a Court of Federal seq., are not deemed to be affiliated with review of all proposed changes, SBA has Claims directive, it establishes the CDC. This exemption from concluded that the number and scope of eligibility requirements for small affiliation is contained in the proposed the proposed changes was broader than disadvantaged business joint ventures. rule at § 124.114(b). SBA believes that it was necessary to achieve SBA’s (11) It reduces reporting requirements should also appear in this section as immediate and most important imposed on program participants. well. In making this amendment, the objectives. Accordingly, this final rule is Each of these changes is discussed final rule separates the various limited to only those changes that will below in SBA’s summary of and provisions of § 121.401(b) into distinct streamline the operation of the 8(a) response to the comments received to its paragraphs for clarity and ease of use. This final rule adds definitions of the program or are particularly significant, August 30, 1994 proposed rule. This term ‘‘CDC-owned concern’’ and as set forth below. The remaining final rule also makes various technical ‘‘Community Development Corporation proposed changes will be considered as changes to the regulations necessary to or CDC’’ to § 124.100. Finally, the rule part of a more far-reaching review of the implement these significant revisions. 8(a) program and will not be makes minor technical changes to implemented at the present time. Summary of Issues Raised by Public §§ 124.101(a), 124.101(b), 124.102(a), This rule makes eleven significant Comment 124.103, 124.104, and 124.109(d) in order to recognize the eligibility of CDC- revisions to current regulations, as Initially, many commenters objected owned concerns for participation in the follows: to the brevity of the 30-day comment 8(a) program. (1) It permits participation in the 8(a) period and requested that SBA extend A number of commenters objected to program by qualified small businesses it. As a result of these requests, SBA the participation of CDCs in the 8(a) owned by Community Development extended the comment period until program generally. As noted in the Corporations to an extent that is not November 28, 1994. proposed rule, the participation of CDCs consistent with the requirements of the SBA received many comments in the 8(a) program is required by 8(a) program as imposed by the Small regarding provisions for its 8(a) statute and cannot be administratively Business Act. regulations that were not the subject of eliminated by SBA. (2) It simplifies 8(a) contracting proposed changes. In addition, one commenter, an procedures by eliminating the Because such comments are outside association representing CDCs, urged distinction established in SBA’s the scope of this rulemaking process, that SBA not require that the regulations between ‘‘local buy’’ and SBA does not respond to them in this management and control of a CDC- ‘‘national buy’’ requirements, except final rule. One commenter objected to owned business be in the hands of one with regard to construction projects. the process by which the regulations or more disadvantaged individuals. The (3) It eliminates the restriction on the were proposed on the grounds that SBA commenter pointed out that CDCs may dollar value of 8(a) contracts received by failed to adhere to economic analysis, acquire already existing business Program Participants previously planning, review, and comment concerns, and that it may not be a imposed by SBA regulations. requirements mandated by Executive prudent business decision to (4) It eliminates the separate treatment Order 12866. SBA maintains that its immediately replace nondisadvantaged for applying the requirements for 8(a) issuance of the proposed rule was managers of such a concern in order to competitive procurements which has proper. SBA submitted the proposed meet 8(a) eligibility requirements. After existed for indefinite quantity or rule to the Office of Management and further review, SBA has decided to indefinite delivery type contracts. Budget (OMB) in conformity with the revise the rule. (5) It eliminates the separate treatment requirements of the Executive Order. In issuing regulations implementing for individuals who are owners and OMB did not believe that a full analysis the inclusion of CDCs pursuant to 42 participants of 8(a) concerns in the of the proposed rule under Executive U.S.C. 9815, SBA has analogized CDCs developmental stage of program Order 12866 was necessary and directed to Indian tribes. In the case of an participation so that they, like owners SBA to publish the rule without its applicant concern that is tribally- and principals of 8(a) concerns in the review under the Executive Order. owned, section 8(a)(4)(B)(ii) of the Small transitional stage, are eligible if their Addition of CDC-owned businesses to Business Act, 15 U.S.C. 637(a)(4)(B)(ii), includable net worth is $750,000 or less. the 8(a) Program. permits the management and daily (6) It streamlines procedures by The rule adds a new § 124.114 which business operations of the concern to be eliminating the requirement that an 8(a) specifically authorizes CDC-owned controlled by one or more members of concern be notified twice of a small business concerns to participant an economically disadvantaged Indian termination or graduation action. in the 8(a) program. The regulation tribe. Thus, a tribally-owned concern (7) It makes it easier for an 8(a) firm prohibits more than one concern with need not be controlled by an individual to add SIC codes to its business plan. the same primary industry classification determined to be socially and Previously, concerns would have to owned by the same CDC from entry into economically disadvantaged. SBA show that a proposed new business SIC the program. It also establishes that believes that similar treatment can be was a logical progression from its disadvantaged individuals involved in provided to CDC-owned companies. existing SIC. Under the new regulations, the management and control of the This result is also consistent with the a concerned need merely show that it business are not considered to have treatment of concerns owned by Alaska has a sound business explanation for used up their eligibility under Native Corporations (ANCs), which are requesting the new SIC code. § 124.108(c) even if their personal entities established for the economic Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29971 development of their villages or regions. Several commenters expressed According to the comment, this would ANC-owned concerns are not required concern that eliminating the distinction simplify administration of the program to be controlled by Alaska Natives in between local and national buy concerning continued eligibility and order to participate in the 8(a) program. requirements will adversely affect new would eliminate concentration of 8(a) The Alaska Native Claims Settlement or smaller 8(a) firms. Based on its contracts within a small number of Act provides that a concern owned by experience with the operation of the companies. SBA believes that a an ANC shall be deemed to be both present regulations, SBA believes that maximum support level, whether on an owned and controlled by such ANC. the adverse effect on new and smaller annual or some other basis, is not Thus, the final rule provides that a 8(a) firms will be negligible. In addition, necessary with careful enforcement of concern that is at least 51% owned by SBA believes that the elimination of the competitive business mix requirements. a CDC shall be deemed to be controlled local/national buy distinction will SBA also believes that support levels by such CDC and eligible for eliminate artificial barriers and promote unnecessarily impede the growth of 8(a) participation in the 8(a) program, national competition, something firms that are in full compliance with provided that it meets other eligibility necessary for the survival of 8(a) the mix requirements. Therefore, this criteria and its management and daily concerns once they leave the program. recommendation was not incorporated business operations are conducted by One commenter claimed that the into the final rule. elimination of the local/national buy one or more individuals determined to Indefinite Quantity, Indefinite Delivery have managerial or technical experience distinction would restrict procurement and competency directly related to the opportunities to all but those firms This rule also amends § 124.311(a) primary industry in which the applicant located around major procurement concerning how the competitive concern is seeking certification. Because centers such as Washington, DC, and threshold requirements should be of this change, the requirement that a Los Angeles, CA. SBA believes that the applied for indefinite quantity and CDC-owned concern be controlled by physical location of firms will have indefinite delivery (IDIQ) requirements. socially and economically little bearing on where they can market Before this amendment, § 124.311(a)(2) disadvantaged individuals is deleted themselves. In fact, 8(a) firms will have specified that ‘‘[f]or purposes of from the final rule. more opportunities to market indefinite quantity/delivery contracts, themselves because they will not be the thresholds will be applied to the Simplifying 8(a) Contracting Procedures restricted by district or regional guaranteed minimum value of the by Eliminating the Distinction boundaries. contract.’’ Based on its experience with Established in SBA’s Regulations One Federal agency opposed the the rule, SBA now believes this Between ‘‘Local Buy’’ and ‘‘National elimination of the definitions for local provision to be unacceptable because of Buy’’ Requirements, Except With Regard and national buys because it believed the wide differences commonly to Construction Projects that such elimination would create an occurring between the ‘‘guaranteed increased opportunity for fraud and minimum’’ amounts on procurements The rule eliminates the definitions for abuse. SBA does not believe fraud and offered to the 8(a) program and the ‘‘local buy’’ and ‘‘national buy’’ abuse will increase simply by amounts actually expended under the requirements from § 124.100. The permitting 8(a) concerns to seek 8(a) procurements. limitations in former § 124.311 (h)(3) contracts nationwide. SBA remains The prior regulation was subject to and (h)(4) effecting who may bid on committed, however, to opposing any substantial criticism. Under the prior local contracts has been eliminated, kind of fraud in the 8(a) program, and rule, procuring agencies could offer very except for construction contracts. All will work with procuring agencies to large procurement requirements to the requirements other than construction thwart such possibilities. 8(a) program as indefinite quantity type requirements will now be open to requirements with guaranteed minimum eligible 8(a) Participants nationally. Eliminating Support Requirements amounts below the applicable 8(a) Construction requirements are exempt Section 124.307 is amended by competitive threshold in order that such from this change because section redesignating paragraph (d) as contracts could be procured on a sole 8(a)(11) of the Small Business Act, 15 paragraph (e) and by adding a new source basis, even though the U.S.C. 637(a)(11), requires, ‘‘to the paragraph (d) that eliminates approved procurement would very likely exceed maximum extent practicable,’’ that 8(a) 8(a) support levels as a basis for denying the applicable competitive threshold construction contracts ‘‘be awarded 8(a) contract awards in excess of those during the performance of the contract. within the county or State where the levels. Most of the commenters SBA believes that requirements that work is to be performed.’’ The final rule supported the proposed rule. One traditionally were procured through limits competition for 8(a) construction commenter recommended that other contract types were being offered contracts to those Program Participants 124.307(d) be amended by adding the and accepted into the 8(a) program as within the geographical boundaries of clause ‘‘or approved remedial plan’’ indefinite quantity requirements solely one or more SBA district offices. SBA after the words ‘‘competitive business to take advantage of the guaranteed believes that a Program Participant may mix’’ and before the words ‘‘imposed by minimum rule and avoid the necessity be considered as being located within a 124.312’’ for clarification. SBA believes for competition. In order to eliminate geographical boundary if it regularly that this is a logical clarification of the this potential abuse, SBA proposed to maintains an office which employs at intent of this proposed rule, and as amend its regulation to specify that the least one full-time individual within such, it is to be incorporated into the competitive threshold requirements that geographical boundary. SBA also final rule. which would be applied for all types of believes that a procuring agency may The SBA Inspector General contracts, including quantity/delivery offer a local sole source 8(a) recommended that there should be some contracts, would be the Government construction requirement to SBA on type of support level requirements. He estimate of the requirement, including behalf of a concern that regularly urged that if annual levels are options, as identified by the procuring maintains an office which employs at impractical, SBA should establish an agency. least one full-time individual within overall dollar limit of 8(a) contracts that SBA received 96 comments regarding that geographical boundary. any individual company can receive. this proposal. Most of the comments 29972 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations objected to the proposed change. Many In addition, as pointed out in the less than this threshold, the contracting comments suggested that the change NAMB analysis, SBA believes that a agency was permitted to use a sole would result in a decline in the number majority of IDIQ contracts, even when source even when the negotiated of requirements being offered to the 8(a) measured by the Government estimate, contract amount exceeded the program, and that this would increase do not exceed the applicable threshold. A requirement of good faith costs to Program Participants as they competitive threshold amount. Because on the part of the contracting agencies would have to compete for requirements most IDIQ contracts will not exceed the was implicit in the prior rule. The new outside the confines of the 8(a) program competitive threshold, the change made rule makes the good faith requirement that were previously accepted as sole in this final rule should not greatly explicit, and requires that the ultimate source 8(a) awards. affect the number of requirements price arrived at through negotiations not Many of the individual comments that offered to the 8(a) program. be significantly higher than the opposed the proposed change were Other commenters felt that no change competitive threshold amount. reflected also in the comments made by was needed to the IDIQ requirement the National Association of Minority because the newly enacted Government- Economic Disadvantage Threshold for Business (NAMB). NAMB opposed the wide Small Disadvantaged Business Individuals Who Are Principals or change because it contended that many (SDB) program will consolidate Owners of Concerns in the IDIQ contracts do not exceed the competitive requirements and will Developmental Stage guaranteed minimum value, and that result in the entry of fewer firms into This rule also amends § 124.111(a)(2) many procuring activities do not the 8(a) program. However, SBA does to establish a $750,000 net worth exercise options on such contracts. not believe that the enactment of a economic disadvantage threshold for Accordingly, they believed that the Government-wide SDB program lessens Program Participants in either the guaranteed minimum amount is a more SBA’s responsibility to deal with the development or transitional stage. accurate reflection of the value of the inappropriate use of 8(a) IDIQ contracts. Previously, concerns in the contract than any other figure. NAMB Because of the change concerning developmental stage were subject to also claimed that the expansion work IDIQ requirements, one commenter was possible termination or graduation from under an IDIQ contract is the direct concerned that procuring agencies the program if their principals had an result of strong performance by the 8(a) would circumvent the competitive includable net worth in excess of company, and that the proposed change threshold requirement, and, thus, $500,000. This rule operated to penalize would, therefore, penalize 8(a) firms for perpetuate past abuses of the program, success in the program and to good performance. by dividing one contract that exceeds discourage entrepreneurship and risk- SBA’s Inspector General and the the threshold amount into several taking. Under the amended rules, Department of the Treasury submitted smaller contracts, each below the concerns in the developmental stage strong comments in support of the competitive threshold amount and all to have the same threshold as concerns in proposed change, citing various abuses be awarded as sole source 8(a) contracts the transitional stage. SBA received no they have found conducting periodic to the same Program Participant. SBA objections to this proposed elimination reviews of 8(a) contracts. agrees that such a division would not be of a different net worth figure for firms SBA shares some of the same appropriate where a procuring agency in the developmental stage of program concerns voiced by NAMB. seeks to award one large requirement to participation. Clearly, not all IDIQ contracts one 8(a) concern through a series of ultimately exceed the guaranteed smaller sole source 8(a) awards. SBA Streamlining Termination and minimum amount. Many commenters, has made a change to the regulation to Graduation NAMB among them, argue that most take this concern into account. Sections 124.208(c) and 124.209(b) contracts do not exceed the guaranteed Specifically, the new provision will streamline the procedures governing minimum amount and some fall short state that an 8(a) requirement with an graduation and termination of 8(a) even of that figure. Certainly, reliance estimated value exceeding the Program Participants respectively. This on a contract’s maximum authorized applicable competitive threshold rule eliminates the second letter of amount as a basis for determining the amount shall not be divided into several notification and the second 45 day contract’s value could leave small requirements for lessor amounts in response period provided in disadvantaged firms with inflated order to use 8(a) sole source procedures § 124.208(c) and § 124.209(b). SBA expectations and adversely affect their for award to a single contractor. SBA received no objections to this business development under the 8(a) does not, however, believe that it would amendment, which will improve SBA’s program. It is for these same reasons be inappropriate for a procuring agency efficiency by eliminating an unneeded that SBA initially adopted the separate to divide a large contract into smaller procedural step. competitive threshold requirement for sole source contracts where different IDIQ requirements. Program Participants would be awarded Making it Easier To Add SIC Codes to SBA now believes, however, that the the smaller contracts. Such an action a Concern’s Business Plan frequency of abuses to the 8(a) would be consistent with the Section 124.302 eases the restrictions procurement process caused by the developmental purposes of the 8(a) on adding SIC codes once a concern is inappropriate use of IDIQ contracts program and with the statutory admitted to the 8(a) program, and outweighs the possible disruption to requirement that SBA equitably shortens the time it takes SBA to business planning caused when a distribute 8(a) awards. respond to a request for a change in SIC guaranteed minimum amount is not Under the prior rule, contracting code designations from 45 days to 30 exceeded. Because of the overriding agencies were obligated to let contracts days. Henceforth, a concern need not need for controlling the potential for competitively among 8(a) concerns if show that the new SIC Codes will be a abuse in this area, SBA adopts the the estimated value of the contract was logical extension of the old ones; just proposed language in this final rule, more than $5 million for manufacturing that there is a sound business reason for although the formatting of the section is work or more than $3 million for all them. These amendments will make it changed for clarity from the proposed other types of work. Where the easier for 8(a) concerns to maintain a rule. anticipated price of the contracts was diversified portfolio of products and Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29973 services. No comments were received legislative authority expired on October cost. Taking into account this concern, regarding these provisions, and they 1, 1992, and the latter on October 1, SBA has determined that it should remain unchanged in the final rule. 1994. reduce the overall reporting requirements imposed by SBA on Easing Ownership Restrictions on Establishing Joint Venture Rules for Program Participants. Accordingly, this Former Program Participants Small Disadvantaged Businesses rule eliminates the quarterly reporting Section 124.103 is amended to permit The final rule institutes criteria for requirements previously imposed by a former Program Participant (except joint ventures for small disadvantaged §§ 124.312 (b)(7) and (c)(10), and the those that have been terminated from business (SDB) set-asides and for SDB reference to a failure to submit quarterly 8(a) program participation pursuant to evaluation preferences. The majority of financial statements as a basis for § 124.209) to have an equity ownership such joint venture’s earnings must termination contained in § 124.209. This interest of up to 20 percent in a current accrue to the socially and economically will lessen the paperwork burden 8(a) concern in the same or similar line disadvantaged individuals in the small imposed on Program Participants, and is of business. SBA believes that allowing disadvantaged business, and consistent with the Agency’s initiative such ownership, and thus easing the disadvantaged individuals must own at to streamline the operation of the 8(a) previous restriction imposed by SBA, least 51% of the joint venture as a program. will enhance the development of both whole. Thus, as the examples make SBA is particularly sensitive to current and former 8(a) Participants. explicit, where a small disadvantaged imposing administrative burdens on 8(a) SBA received forty-four comments in concern which is 51% owned by one or participants. The rule as proposed was support of this provision. Two more disadvantaged individuals enters a designed to make compliance as commenters, however, were concerned joint venture with a small concern inexpensive as possible. Only Program that this change would permit current which is 100% owned by Participants with annual gross income 8(a) concerns to become ‘‘fronts’’ for nondisadvantaged individuals, the joint of $5 million or more need submit former 8(a) concerns, and, thus, prolong venture is not eligible even if the small audited financial statements prepared their participation, albeit indirect, in the disadvantaged concern earns 90% of the by a licensed independent public 8(a) program. SBA believes that there contract’s proceeds, since 51% of 90% accountant. Program Participants with a are enough safeguards in place to is only 45.9%. gross annual income of at least $1 protect against abuse of this sort. The SBA received seven comments million and less than $5 million need regulations require that management pertaining to the section. For the most only submit reviewed financial and control be in the hands of the part, the commenters concurred with statements prepared by a licensed disadvantaged owners of current 8(a) the provisions proposed by SBA. independent public accountant. concerns. Failure to meet this However, some commenters urged more Program Participants with annual gross requirement, which is confirmed yearly restrictive provisions to protect against revenues of less than $1 million need during the annual review process, is the possibility that a small merely submit an annual statement grounds for termination from the 8(a) disadvantaged business will ‘‘front’’ for prepared by a licensed independent program under § 124.209 and may cause a nondisadvantaged business. SBA has public accountant. The actual cost of termination of previously awarded 8(a) concluded that the present language, this last type of report is negligible, and contracts under § 124.317. In addition, which requires that both a majority of in many cases is prepared as part of tax § 124.314 requires the current 8(a) the joint venture’s proceeds and 51% of preparation. In addition, the regulation concern itself (and not a subsidiary of or its ownership accrue directly to authorizes the District Director to waive another concern affiliated with the 8(a) disadvantaged individuals, is sufficient the requirement for an audited financial concern) to perform specified protection against abuse. statement for the first year a concern is percentages of awarded 8(a) contracts. required to submit one, and authorizes Eliminating Quarterly Reporting Thus, a current 8(a) participant could the Associate Administrator for Requirements not shift performance of an 8(a) contract Minority Enterprise Development to to the former 8(a) concern partial owner. Section 124.501 adds a new paragraph waive the requirement in subsequent Finally, one commenter recommended (c) and redesignates current paragraph years. One of the grounds for waiver can that SBA increase the allowable equity (c) as paragraph (d). The newly be financial hardship. SBA believes that ownership interest by a former Program established § 124.501(c) requires the the benefits to program integrity which Participant to 35%. SBA believes that submission of annual audited financial will result from clear and accurate such an increase could give former statements only by larger 8(a) Program financial accounting requirements is Program Participants undue influence in Participants, those with revenues in significant, and that the elimination of current 8(a) Participants, and, thus, excess of $5 million. The requirement to quarterly financial statements will rejects it. submit such financial statements is not reduce the overall administrative a change in SBA policy. The burden placed on 8(a) concerns. Streamlining Regulations by Removing requirement for financial statements is References to Expired Authority currently contained in §§ 124.312 (b)(7) Compliance With Executive Orders The final rule repeals § 124.304, and (c)(10) (which have elsewhere been 12612, 12778, and 12866, the (implementing statutory authority given redesignated as paragraphs (b)(4) and Regulatory Flexibility Act (5 U.S.C. 601, SBA to grant Program Participants in the (c)(7) in this final rule), and failure to et seq.), and the Paperwork Reduction developmental stage of program comply with it is referenced as a basis Act (44 U.S.C. Ch. 35) participation a maximum of two for finding good cause to terminate a SBA certifies that this rule does not exemptions to the requirements of the Program Participant in § 124.209(a)(6)(i). have a significant economic impact on Walsh-Healey Act). It also repeals An earlier SBA Notice had established a substantial number of small entities § 124.305 (implementing statutory guidelines regarding these reporting within the meaning of Executive Order authority given SBA to grant Program requirements. 12866 or the Regulatory Flexibility Act, Participants exemptions from Miller Act A majority of the comments 5 U.S.C. 601, et seq. This rule is bonding requirements). The rule concerning this provision of the necessary to resolve several points reserves these sections. The former proposed rule opposed it because of regarding eligibility for SBA’s Section 29974 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 8(a) program, eliminate certain For the reasons set forth above, SBA § 124.7 [Amended] regulatory restrictions imposed on the hereby amends part 121 of title 13, Code 4. Section 124.7(b) is amended by amount of 8(a) contract dollars and the of Federal Regulations, and subpart A, removing paragraph (b)(1) and by type of 8(a) contracts received by a part 124 of title 13, Code of Federal redesignating paragraph (b)(2) as given 8(a) Program Participant, and to Regulations (CFR), as follows: paragraph (b). ensure that the statutory requirement 5. Section 124.100 is amended by governing which 8(a) requirements must PART 121Ð[AMENDED] removing the terms ‘‘Local buy item’’ be competed among eligible 8(a) 1. The authority citation for 13 CFR and ‘‘National buy item’’, and adding, in Program Participants not be part 121 continues to read as follows: alphabetical order, the following new circumvented. Whether a particular 8(a) definitions of the terms ‘‘Community concern is eligible for participation in, Authority: 15 U.S.C. 632(a), 634(b)(6), Development Corporation or CDC’’, and 637(a) and 644(c); and Pub. L. 102–486, 106 ‘‘CDC-owned concern’’: or once in, whether it, as opposed to Stat. 2776, 3133. another 8(a) concern, would be awarded § 124.100 Definitions. a particular 8(a) contract can be affected 2. Section 121.401(b) is revised to by the rule. read as follows: * * * * * As discussed above in the CDC-owned concern means any § 121.401 Affiliation. concern at least 51 percent owned by a supplementary information, several * * * * * Community Development Corporation commenters were concerned that the (b) Exclusion from affiliation as defined in this section. change in this rule relating to the coverage. (1) Portfolio or client concerns application of the competitive threshold * * * * * owned in whole or substantial part by Community Development Corporation requirement in the IDIQ context would investment companies licensed, or cause a reduction in the number of or CDC means a nonprofit organization development companies qualifying, responsible to residents of the area it procurement requirements offered to the under the Small Business Investment 8(a) program. SBA does not believe that serves which has received financial Act of 1958, as amended, or by assistance under 42 U.S.C. 9805 et seq. any such possible reduction will be Investment Companies registered under significant. In addition, also as the Investment Company Act of 1940, as * * * * * 6. Section 124.101 is amended by discussed above, SBA believes that the amended, are not considered affiliates of adding the following new sentence after potential for abuse that a failure to such investment companies or the third sentence in paragraph (a), and change the regulation would perpetuate development companies. outweighs any loss of contract dollars to (2) Business concerns owned and by revising the first sentence in the program. Therefore, it is not likely controlled by Indian Tribes, Alaska paragraph (b) to read as follows: to have an annual economic effect of Regional or Village Corporations § 124.101 The 8(a) program: General $100 million or more, result in a major organized pursuant to the Alaska Native eligibility. increase in costs or prices, or have a Claims Settlement Act (43 U.S.C. 1601, (a) * * * An applicant concern significant adverse effect on competition et seq.), or Native Hawaiian owned and controlled by a Community or the United States economy. Organizations are not considered Development Corporation must meet the For purposes of the Paperwork affiliates of such tribes, Alaska Regional requirements set forth in § 124.114 and Reduction Act, 44 U.S.C. Ch. 35, SBA or Village Corporations, or Native in §§ 124.102 through 124.109, as certifies that this rule contains no new Hawaiian Organizations, or with other applicable. * ** reporting or record keeping concerns owned by these entities solely (b) In order to continue its requirements. In fact, it eliminates a because of their common ownership. participation in the 8(a) program, a prior requirement imposed on Program However, affiliation with other concerns Program Participant must continue to Participants to submit quarterly owned by these entities may be caused meet all eligibility requirements financial statements to SBA. by circumstances other than common described in §§ 124.102 through For purposes of Executive Order ownership under this section. 124.109, § 124.111(a), and § 124.112, 12612, SBA certifies that this rule has (3) Business concerns owned and § 124.113 or § 124.114, if applicable. no federalism implications warranting controlled by a Community *** the preparation of a Federalism Development Corporation (CDC) * * * * * Assessment. authorized by 42 U.S.C. 9805 et seq. are 7. Section 124.102(a) is revised to For purposes of Executive Order not considered affiliates of such CDC or read as follows: 12778, SBA certifies that this rule is with other concerns owned by the CDC drafted, to the extent practicable, in solely because of their common § 124.102 Small business concern. accordance with the standards set forth ownership. However, affiliation with (a) In order to be approved for in Section 2 of that Order. other concerns owned by a CDC may be participation in the 8(a) program, an List of Subjects caused by circumstances other than applicant concern must qualify as a common ownership under this section. small business concern as defined in 13 CFR Part 121 * * * * * part 121 of this title. The particular size Government procurement; standard to be applied will be based on Government property; Grant programs— PART 124Ð[AMENDED] the primary industry classification of the applicant concern. The size of a business; Loan programs—business; Subpart AÐMinority Small Business Small businesses. tribally-owned concern, a concern and Capital Ownership Development owned by a Native Hawaiian 13 CFR Part 124 3. The authority citation for part 124 Organization, or a concern owned by a Government procurement; Hawaiian is revised to read as follows: Community Development Corporation shall be additionally determined by natives; Minority businesses; Reporting Authority: 15 U.S.C. 634(b)(6), 636(j), and recordkeeping requirements; 637(a), and 637(d), Pub. L. 99–661, sec. 1207, reference to § 124.122, § 124.113 or Technical assistance; Tribally-owned Pub. L. 100–656, Pub. L. 101–37, Pub. L. § 124.114, respectively. concerns. 101–574, and 42 U.S.C. 9815. * * * * * Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29975 8. Section 124.103 is amended by related to the primary industry in which participation in the 8(a) program, revising the introductory text and the the applicant concern is seeking provided it meets all eligibility criteria first sentence of paragraph (h) to read as certification. set forth or referred to in this section follows: * * * * * and its management and daily business operations are conducted by one or § 124.103 Ownership requirements. 10. Section 124.109 is amended by revising paragraph (d) to read as more individuals determined to have Except for concerns owned by Indian follows: managerial or technical experience and tribes, Alaska Native Corporations, competency directly related to the Native Hawaiian Organizations, or § 124.109 Ineligible businesses. primary industry in which the applicant Community Development Corporations, * * * * * concern is seeking certification. as defined in § 124.110, in order to be (d) Non-profit organizations. A non- (c) A concern owned by a CDC must eligible to participate in the 8(a) profit organization does not meet the qualify as a small business concern as program, an applicant concern must be general definition of a concern as set defined for purposes of Government at least 51 percent unconditionally forth in part 121 and § 124.100 of these procurement in part 121 of this title. owned by an individual(s) who is a regulations and is, therefore, ineligible The particular size standard to be citizen of the United States (specifically for 8(a) program participation. In applied shall be based on the primary excluding permanent resident alien(s)) addition, a business entity owned by a industry classification of the applicant and who is determined by SBA to be non-profit organization is not eligible concern. Ownership by the CDC will socially and economically for 8(a) program participation because not, in and of itself, cause affiliation disadvantaged. Special ownership such a concern does not meet the with the CDC or with other CDC-owned requirements for concerns owned by requirement of being owned and entities. However, affiliation with the Indian tribes and Alaska Native controlled by disadvantaged CDC or other CDC-owned entities may Corporations are set forth in § 124.112. individuals. Nothing in this paragraph be caused by circumstances other than Ownership requirements for Native affects the eligibility of a for-profit common CDC ownership. Hawaiian Organizations are set forth in concern owned and controlled by an (d) No CDC shall own more than one § 124.113. Ownership requirements for Indian tribe, including an Alaskan current or former 8(a) Program Community Development Corporations Native Corporation, a Native Hawaiian Participant having the same primary are set forth in § 124.114. Organization or a Community industry classification. * * * * * Development Corporation (see (e) SBA does not deem an individual (h) A non-8(a) concern in the same or §§ 124.112, 124.113 and 124.114). involved in the management or daily similar line of business is prohibited * * * * * business operations of a CDC-owned from having an equity ownership 11. Section 124.111 is amended by concern to have used his or her interest in an 8(a) concern which revising paragraph (a)(2) to read as individual eligibility within the exceeds 10 percent, except that a former follows: meaning of § 124.108(c). Program Participant (except those that 13. Section 124.208 is amended by have been terminated from 8(a) program § 124.111 Continued 8(a) program removing paragraph (c)(2), by participation pursuant to § 124.209) may eligibility. redesignating paragraphs (c)(3), (c)(4), have an equity ownership interest of up (a) * * * (c)(5), and (c)(6) as paragraphs (c)(2), to 20 percent in a current 8(a) concern (2) In order for a Program Participant (c)(3), (c)(4), and (c)(5), and by revising in the same or similar line of business. to maintain continued 8(a) program the first sentence in newly redesignated *** eligibility, the net worth of an paragraph (c)(2) to read as follows: * * * * * individual claiming to be socially and 9. Section 124.104 is amended by economically disadvantaged cannot § 124.208 Program graduation. revising the introductory text to read as exceed $750,000, as calculated pursuant * * * * * follows: to § 124.106(a)(2)(i). An individual (c) * * * whose personal net worth exceeds (2) Recommendation of the Division. § 124.104 Control and management. $750,000, as calculated pursuant to Following the 45 day response period, Except for concerns owned by Indian § 124.106(a)(2)(i), will not be considered the Division Director will consider the tribes, Alaska Native Corporations economically disadvantaged. facts of the proposed graduation, (ANCs), Native Hawaiian Organizations, * * * * * including all information submitted by or Community Development 12. A new § 124.114 is added to read the Participant. * ** Corporations (CDCs), as defined in as follows: * * * * * § 124.100, an applicant concern’s 14. Section 124.209 is amended by management and daily business § 124.114 Concerns owned by Community removing paragraph (b)(2), by Development Corporations. operations must be conducted by one or redesignating paragraphs (b)(3), (b)(4), more owners of the applicant concern (a) Concerns owned at least 51% by (b)(5) and (b)(6) as paragraphs (b)(2), who have been determined to be Community Development Corporations (b)(3), (b)(4) and (b)(5), by revising the socially and economically (CDCs), as defined in § 124.100, are first sentence of paragraph (a)(6)(i) and disadvantaged. (See § 124.112 for the eligible for participation in the 8(a) newly redesignated paragraph (b)(2), requirements for tribally-owned entities program and other federal programs and by adding the following new and those owned by ANCs, § 124.113 for requiring SBA to determine social and sentence to the end of newly requirements for concerns owned by economic disadvantage as a condition of redesignated paragraph (b)(3) to read as Native Hawaiian Organizations, and eligibility. Such concerns must meet all follows: § 124.114 for requirements for CDC- eligibility criteria set forth in §§ 124.102 owned concerns). In order for a through 124.109 and § 124.111(a) of this § 124.209 Program termination disadvantaged individual to be found to part. (a) General. *** control the concern, that individual (b) A concern that is at least 51% (6) * * * must have managerial or technical owned by a CDC shall be deemed to be (i) Failure by the concern to provide experience and competency directly controlled by such CDC and eligible for required financial statements to SBA 29976 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations pursuant to §§ 124.312 (b)(4), paragraphs (e) and (f), and by adding the examine the portfolio of 8(a) concerns 124.312(c)(7), and 124.501(c). * ** following new paragraph (d): for the SBA district office where the work is to be performed for selection of * * * * * § 124.307 Contractual assistance. (b) * * * a qualified 8(a) concern. *** (2) Recommendation of the Division. * * * * * (2) If the procurement is anything Following the 45-day response period, (d) While a Program Participant’s other than a construction requirement, the Division Director will have 15 days projected level of 8(a) contract support SBA may select any eligible, responsible to consider the facts of the proposed is required as part of its business plan Program Participant nationally to termination, including all information under § 124.302(b) as a planning and perform the contract. development tool, the level approved by submitted by the Participant. The * * * * * Division Director may, if he/she deems SBA will not prevent contract awards it necessary, request additional above that level so long as SBA § 124.308 [Amended] information from the Participant. If the determines the concern to be competent and responsible to perform any such 22. Section 124.308 is further grounds for the proposed termination amended by removing the words continue to exist, the Division Director contracts and the Participant is in compliance with any applicable ‘‘approved 8(a) business support level or shall recommend in writing to the AA/ the’’ contained in paragraph (e)(1)(iii). MSB&COD that the Participant be competitive business mix requirement, or approved remedial plan, imposed by 23. Section 124.311 is amended by terminated. revising paragraph (a)(2), by removing (3) Decision of the AA/MSB&COD. § 124.312. paragraph (b), by redesignating ** * Unless appealed to OHA, the * * * * * paragraphs (c), (d), (e), (f), (g), (h), and decision of the AA/MSB&COD to 21. Section 124.308 is amended by (i) as paragraphs (b), (c), (d), (e), (f), (g), terminate a Program Participant shall be revising paragraph (d), the first sentence and (h), respectively, by adding a effective 45 days after its issuance. of paragraph (f)(1), and paragraph (f)(2), to read as follows: sentence to the end of newly * * * * * redesignated paragraph (d) introductory 15. Section 124.302 is amended by § 124.308 Procedures for obtaining and text, by removing newly redesignated revising paragraph (c)(1)(i)(A) and (c)(2) accepting procurements for the 8(a) (d)(1) and (d)(2), and by revising newly to read as follows: program. redesignated paragraphs (g)(3) and § 124.302 Review and modification of * * * * * (g)(4), to read as follows: business plan. (d) Acceptance of the requirement. Upon receipt of the procuring agency’s § 124.311 8(a) competition. * * * * * (c) Changes in SIC code designations. offer of a procurement requirement, (a) * * * *** SBA will determine whether it will (2) The anticipated award price of the (1) * * * accept the requirement for the 8(a) contract, including options, will exceed (i)(A) A sound business explanation program. SBA’s decision whether to $5,000,000 for contracts assigned exists for obtaining the requested SIC accept the requirement will be manufacturing Standard Industrial code, including, for example, the transmitted to the procuring agency in Classification (SIC) codes and acquisition of the capability to perform writing within 15 working days of $3,000,000 for all other contracts. contracts in an industry, even if receipt of the written offering letter, (i) For all types of contracts, the unrelated to the 8(a) concern’s primary unless SBA requests, and the procuring applicable competitive threshold SIC code; agency grants, an extension. SBA is not amounts will be applied to the required to accept any particular * * * * * procuring agency estimate of the total procurement offered to the 8(a) program. value of the contract, including all (2) SBA will make a decision on such (1) Where SBA decides to accept an options. request within 30 days from the date it offering of a sole source 8(a) receives the request. procurement, SBA will accept the offer (ii) Where a procuring agency good * * * * * both on behalf of the program and in faith estimate of the total value of a proposed 8(a) contract is less than the § 124.303 [Amended] support of the approved business plan of a specific 8(a) Program Participant. applicable competitive threshold 16. Section 124.303 is amended by (2) Where SBA decides to accept an amount and the requirement is accepted removing paragraphs (c)(3) and (c)(4), offering of a competitive 8(a) as a sole source requirement on that and by redesignating paragraphs (c) (5) procurement, SBA will accept the offer basis, award may be made even though through (7) of paragraph (c) as for the 8(a) program generally. the ultimate price arrived at through paragraphs (c)(3) through (c)(5). (3) Except for requirements assigned a negotiations exceeds the competitive 17. Section 124.303 is further construction SIC code by the procuring threshold, provided that the ultimate amended by changing the reference in agency contracting officer, all price is not significantly greater than the paragraph (d)(1) to ‘‘paragraphs (c)(1), competitive 8(a) requirements accepted competitive threshold amount. (c)(2), (c)(6) and (c)(7) of this section’’ to by SBA may be competed among all Example. If the anticipated award price for a reference to ‘‘paragraphs (c)(1), (c)(2), eligible 8(a) Program Participants a professional services requirement is (c)(4) and (c)(5) of this section.’’ nationally. The only geographic determined to be $2.7 million and it is § 124.304 [Removed and Reserved] restrictions pertaining to 8(a) accepted as a sole source 8(a) requirement on that basis, a sole source award will be valid 18. Section 124.304 is removed and competitive requirements, other than those for construction requirements, even if the contract price arrived at after reserved. negotiation is $3.1 million. would be those imposed by the § 124.305 [Removed and Reserved] solicitations themselves. (iii) A proposed 8(a) requirement with 19. Section 124.305 is removed and * * * * * an estimated value exceeding the reserved. (f) Open requirements. * ** applicable competitive threshold 20. Section 124.307 is amended by (1) If the procurement is a amount shall not be divided into several redesignating paragraphs (d) and (e) as construction requirement, SBA will requirements for lesser amounts in order Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29977 to use 8(a) sole source procedures for 26. Section 124.312 is amended by § 124.321 Joint venture agreements. award to a single contractor. removing paragraphs (b)(4), (b)(5), and * * * * * * * * * * (b)(6), by redesignating paragraph (b)(7) (i) Joint ventures for Small (d) Sole source above thresholds. as paragraph (b)(4), and by revising the Disadvantaged Business Set-Asides and ** * SBA will accept a contract first sentence of newly redesignated Small Disadvantaged Business opportunity above the applicable paragraph (b)(4) to read as follows: Evaluation Preferences. Joint ventures competitive threshold as a sole source § 124.312 Competitive business mix. are permitted for Small Disadvantaged 8(a) requirement only if there are not Business (SDB) set-asides and SDB two eligible offerors in the United States * * * * * evaluation preferences, provided that capable of performing the requirement (b) * * * the requirements set forth in this (4) Reporting and verification of at a fair price. paragraph are met. business activity. Once admitted to the * * * * * 8(a) program, a Program Participant (1) For purposes of this paragraph, the (g) Restricted Competition. * * * term joint venture has the same meaning (3) Construction competitions. Where must provide annual financial statements to SBA in accord with as that set forth in § 121.401(l) of this a construction requirement offered to chapter. Two or more concerns that the 8(a) program exceeds the $3 million § 124.501(c). * ** 27. Section 124.312 is further form an ongoing relationship to conduct competitive threshold, SBA will business would not be considered ‘‘joint determine, based on its knowledge of amended by removing paragraphs (c)(2), (c)(3), and (c)(9), by redesignating venturers’’ within the meaning of this the 8(a) portfolio, whether the paragraph, and would also not be competition should be limited only to paragraphs (c)(4), (c)(5), (c)(6), (c)(7), (c)(8), (c)(10), (c)(11), and (c)(12) as eligible as an entity owned and those Program Participants located controlled by one or more socially and within the geographical boundaries of paragraphs (c)(2), (c)(3), (c)(4), (c)(5), (c)(6), (c)(7), (c)(8), and (c)(9), economically disadvantaged one or more SBA district offices, an individuals. entire SBA regional office, or adjacent respectively, by revising the reference to ‘‘paragraphs (c)(4) and (c)(5)’’ in the last (2) A concern that is owned and SBA regional offices. Only those controlled by one or more socially and Participants located within the sentence of newly redesignated paragraph (c)(7) to a reference to economically disadvantaged individuals appropriate geographical boundaries are entering into a joint venture agreement eligible to submit offers. ‘‘paragraphs (c)(2) and (c)(3)’’, and by with one or more other business (4) Competition for all non- revising the first sentence of newly concerns is considered to be affiliated construction requirements. Except for redesignated paragraph (c)(7) to read as construction requirements, all eligible follows: for size purposes with such other concern(s). The combined annual Program Participants nationally may § 124.312 Competitive business mix. submit offers in response to any receipts or employees of the concerns solicitation for a competitive 8(a) * * * * * entering into the joint venture must procurement requirement. (c) * * * meet the applicable size standard (7) Reporting and verification of corresponding to the SIC code * * * * * business activity. Program Participants designated for the contract. 24. Section 124.311 is further during the transitional stage shall amended by removing the Example (3) The majority of the venture’s provide annual financial statements to following newly redesignated paragraph earnings must accrue directly to the SBA with a breakdown of 8(a) and non- (e)(4)(iii), by adding the word ‘‘and’’ socially and economically 8(a) revenue in accord with § 124.501(c). after the semi-colon (‘‘;’’) in newly disadvantaged individuals in the SDB redesignated paragraph (e)(5)(iii), by *** concern(s) in the joint venture. removing newly redesignated paragraph * * * * * (4) The percentage ownership involvement in a joint venture by (e)(5)(iv) in its entirety, by redesignating § 124.312 [Amended] paragraph (e)(5)(v) as paragraph disadvantaged individuals must be at 28. Section 124.312 is further (e)(5)(iv), and by revising newly least 51 percent. amended by changing the reference in redesignated paragraph (e)(5)(iv) to read Example 1. Small business concern A is paragraph (c)(1) to ‘‘paragraph (c)(4) of as follows: 100% owned by disadvantaged individuals. this section’’ to a reference to Small business concern B is 100% owned by § 124.311 8(a) competition. ‘‘paragraph (c)(2) of this section’’ and by nondisadvantaged individuals. The * * * * * changing the reference in the same percentage involvement by concern A in a (e) * * * paragraph to ‘‘paragraph (c)(5) of this joint venture between A and B must be at (5) * * * section’’ to a reference to ‘‘paragraph least 51%. (iv) If the firm is in the transitional (c)(3) of this section’’. Example 2. Small business concern C is stage of program participation, whether 29. Section 124.312 is further 51% owned by disadvantaged individuals. it has achieved its competitive business amended by changing the reference in Small business concern D is 100% owned by newly designated paragraph (c)(8) to nondisadvantaged individuals. Any joint mix targets under § 124.312, or is in venture between C and D would be ineligible compliance with a remedial plan that ‘‘paragraph (c)(12) of this section’’ to a because the amount of ownership does not include the denial of future reference to ‘‘paragraph (c)(9) of this involvement in such a joint venture by 8(a) contracts. section’’. disadvantaged individuals would be less * * * * * 30. Section 134.312 is further than 51%. Even a 90% involvement by amended by changing the reference in concern C in a joint venture with D would § 124.311 [Amended] newly designated paragraph (c)(9) to mean an overall ownership involvement by 25. Section 124.311 is further ‘‘paragraphs (c)(4) and (c)(5) of this disadvantaged individuals of only 45.9% amended by revising the reference in section’’ to a reference to ‘‘paragraphs (51% of 90), and an overall ownership newly redesignated paragraph (e)(7) to (c)(2) and (c)(3) of this section’’. involvement by nondisadvantaged individuals of 54.1% (10+(49% of 90)). ‘‘paragraph (f)(5) of this section’’ to a 31. Section 124.321 is amended by reference to ‘‘paragraph (e)(5) of this adding a new paragraph (i) to read as 32. Section 124.501 is amended by section.’’ follows: redesignating paragraph (c) as paragraph 29978 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations (d) and by adding the following new independent public accountant’s regulations is approved by the Director paragraph (c): opinion. of the Federal Register as of July 14, (5) While financial statements need 1995. § 124.501 Miscellaneous reporting not be submitted until 90 or 120 days requirements. ADDRESSES: Service information that after the close of an 8(a) concern’s fiscal applies to this AD may be obtained from * * * * * year, depending on the receipts of the Alexander Schleicher GmbH & (c) Submission of financial concern, a concern seeking to be Company, D–36163, Popppenhausen- statements. (1) Program Participants awarded an 8(a) contract between the Wasserkuppe, Germany; or Eastern with actual gross annual receipts of close of its fiscal year and such 90 or Sailplane, Heath Stage Route, Shelburne $5,000,000 or more must submit to SBA 120-day time period must submit a final Falls, Massachusetts 01370; telephone audited annual financial statements sales report signed by the CEO or (413) 625–6059. This information may prepared by a licensed independent President to SBA in order for SBA to also be examined at the FAA, Central public accountant (as defined in part determine/verify the concern’s size and Region, Office of the Assistant Chief 107, appendix I, paragraph II. B) within its compliance with competitive Counsel, Room 1558, 601 E. 12th Street, 120 days after the close of the concern’s business mix targets. This report must Kansas City, Missouri 64106; or at the fiscal year. show a breakdown of 8(a) and non-8(a) (i) Upon request by the Program Office of the Federal Register, 800 North sales. Capitol Street, NW., suite 700, Participant, SBA may waive the (6) Notwithstanding a concern’s gross requirement for audited financial Washington, DC. annual receipts, audited or reviewed FOR FURTHER INFORMATION CONTACT: Mr. statements. Waivers under this annual and/or quarterly statements may paragraph may be granted by the Herman Belderok, Project Officer, be required whenever SBA determines it Gliders, Small Airplane Directorate, appropriate District Director only for the is necessary to obtain a more thorough first year that audited financial Aircraft Certification Service, FAA, verification of a concern’s assets, 1201 Walnut, suite 900, Kansas City, statements are required. Beyond such liabilities, income and/or expenses, or first year, only the AA/MSB&COD may Missouri 64106; telephone (816) 426- to determine the concern’s capacity to 6932; facsimile (816) 426–2169. waive this requirement for good cause perform a specific 8(a) contract. shown by the Program Participant. SUPPLEMENTARY INFORMATION: A (ii) Circumstances where waivers of * * * * * proposal to amend part 39 of the Federal audited financial statements may be Dated: April 5, 1995. Aviation Regulations (14 CFR part 39) to granted include, but are not limited to, Philip Lader, include an AD that would apply to the following: Administrator. certain Alexander Schleicher Model (A) The concern has an unexpected [FR Doc. 95–13722 Filed 6–6–95; 8:45 am] ASK 21 gliders was published in the increase in sales towards the end of its BILLING CODE 8025±01±M Federal Register on January 18, 1995 fiscal year that creates an unforeseen (60 FR 3579). The action proposed to requirement for audited statements; require replacing the parallel rocker at (B) The concern unexpectedly DEPARTMENT OF TRANSPORTATION the automatic elevator connection with experiences severe financial difficulties a part of improved design, and which would make the cost of audited Federal Aviation Administration incorporating flight manual revisions. financial statements a particular burden; Accomplishment of the proposed action and 14 CFR Part 39 would be in accordance with Alexander (C) The concern has been an 8(a) [Docket No. 91±CE±25±AD; Amendment 39± Schleicher ASK 21 Technical Note No. Program Participant less than 12 9248; AD 95±11-15] 22, dated November 26, 1990. months. Interested persons have been afforded (2) Program Participants with actual Airworthiness Directives; Alexander an opportunity to participate in the gross annual receipts of $1,000,000 to Schleicher GmbH & Co. Model ASK 21 making of this amendment. No $4,999,999 shall submit to SBA Gliders comments were received on the reviewed annual financial statements proposed rule or the FAA’s prepared by a licensed independent AGENCY: Federal Aviation determination of the cost to the public. public accountant (as defined in part Administration, DOT. After careful review of all available 107, appendix I, paragraph II. B) within ACTION: Final rule. information related to the subject 90 days after the close of the concern’s presented above, the FAA has fiscal year. SUMMARY: This amendment adopts a determined that air safety and the (3) Program Participants with actual new airworthiness directive (AD) that public interest require the adoption of gross annual receipts of less than applies to Alexander Schleicher GmbH the rule as proposed except for minor $1,000,000 shall submit to SBA an & Co. (Alexander Schleicher) Model editorial corrections. The FAA has annual statement prepared in-house or a ASK 21 gliders. The required action determined that these minor corrections compilation statement prepared by a requires replacing the parallel rocker will not change the meaning of the AD licensed independent public accountant with a part of improved design, and and will not add any additional burden (as defined in part 107, appendix I, incorporating flight manual revisions. upon the public than was already paragraph II. B), verified as to accuracy Two incidents of the parallel rocker proposed. by an authorized officer, partner, or sole breaking at the elevator connection on The compliance time of this AD is in proprietor of the 8(a) concern, by the affected gliders prompted this calendar time instead of hours time-in- signature and date, within 90 days after action. The actions specified by this AD service (TIS). The average monthly the close of the concern’s fiscal year. are intended to prevent possible loss of usage of the affected gliders ranges (4) Any audited financial statements elevator control that could result from a throughout the fleet. For example, one submitted to SBA pursuant to broken parallel rocker. owner may operate the glider 25 hours § 124.501(c) shall be prepared in DATES: Effective July 14, 1995. TIS in one week, while another operator accordance with Generally Accepted The incorporation by reference of may operate the glider 25 hours in one Accounting Principles and reflect the certain publications listed in the year. For this reason, the FAA has Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29979 determined that, in order to ensure that PART 39ÐAIRWORTHINESS (e) The replacement required by this AD all of the affected gliders have parallel DIRECTIVES shall be done in accordance with Alexander rockers of improved design installed, a Schleicher ASK 21 Technical Note No. 22, calendar compliance time is used. 1. The authority citation for part 39 dated November 26, 1990. This incorporation continues to read as follows: by reference was approved by the Director of The FAA estimates that 35 gliders in the Federal Register in accordance with 5 Authority: 49 U.S.C. App. 1354(a), 1421 the U.S. registry will be affected by this U.S.C. 552(a) and 1 CFR part 51. Copies may and 1423; 49 U.S.C. 106(g); and 14 CFR be obtained from Alexander Schleicher AD, that it will take approximately 1 11.89. workhour per glider to accomplish the GmbH & Company, D–36163, required action, and that the average § 39.13 [Amended] Popppenhausen-Wasserkuppe, Germany; or labor rate is approximately $60 an hour. 2. Section 39.13 is amended by Eastern Sailplane, Heath Stage Route, Parts cost approximately $45 per glider. Shelburne Falls, Massachusetts 01370. adding a new AD to read as follows: Copies may be inspected at the FAA, Central Based on these figures, the total cost 95–11–15 Alexander Schleicher: Region, Office of the Assistant Chief Counsel, impact of the AD on U.S. operators is Amendment 39–9248; Docket No. 91– Room 1558, 601 E. 12th Street, Kansas City, estimated to be $3,675. This figure is CE–25–AD. Missouri, or at the Office of the Federal based upon the assumption that no Applicability: Model ASK 21 gliders (all Register, 800 North Capitol Street, NW., suite affected glider owner/operator has serial numbers), certificated in any category. 700, Washington, DC. accomplished the required replacement. Note 1: This AD applies to each glider (f) This amendment (39–9248) becomes effective on July 14, 1995. Alexander Schleicher has informed identified in the preceding applicability the FAA that improved design parallel provision, regardless of whether it has been Issued in Kansas City, Missouri, on May 22, 1995. rockers have been distributed for all 35 modified, altered, or repaired in the area subject to the requirements of this AD. For Henry A. Armstrong, affected gliders. Assuming that each of gliders that have been modified, altered, or these parts is installed on one of the Acting Manager, Small Airplane Directorate, repaired so that the performance of the Aircraft Certification Service. affected gliders, the required action will requirements of this AD is affected, the not impose any cost impact upon U.S. owner/operator must use the authority [FR Doc. 95–12948 Filed 6–6–95; 8:45 am] operators. provided in paragraph (g) of this AD to BILLING CODE 4910±13±U The regulations adopted herein will request approval from the FAA. This approval may address either no action, if the not have substantial direct effects on the current configuration eliminates the unsafe 14 CFR Part 39 States, on the relationship between the condition, or different actions necessary to national government and the States, or address the unsafe condition described in [Docket No. 92±CE±13±AD; Amendment 39± on the distribution of power and this AD. Such a request should include an 9256; AD 95±12±06] responsibilities among the various assessment of the effect of the changed Airworthiness Directives; Jetstream levels of government. Therefore, in configuration on the unsafe condition Aircraft Limited (formerly British accordance with Executive Order 12612, addressed by this AD. In no case does the presence of any modification, alteration, or Aerospace, Regional Aircraft Limited) it is determined that this final rule does repair remove any glider from the Jetstream Models 3101 and 3201 not have sufficient federalism applicability of this AD. Airplanes implications to warrant the preparation Compliance: Required within the next 30 of a Federalism Assessment. calendar days after the effective date of this AGENCY: Federal Aviation For the reasons discussed above, I AD, unless already accomplished. Administration, DOT. To prevent possible loss of elevator control certify that this action (1) is not a ACTION: Final rule. ‘‘significant regulatory action’’ under that could result from a broken parallel rocker, accomplish the following: SUMMARY: This amendment adopts a Executive Order 12866; (2) is not a (a) Replace the parallel rocker with an ‘‘significant rule’’ under DOT improved and stronger part (part number new airworthiness directive (AD) that Regulatory Policies and Procedures (44 99.000.4940 with modification status 1) in applies to certain Jetstream Aircraft FR 11034, February 26, 1979); and (3) accordance with the instructions in Limited (JAL) Jetstream Models 3101 will not have a significant economic Alexander Schleicher ASK 21 Technical Note and 3201 airplanes. The action requires impact, positive or negative, on a No. 22, dated November 26, 1991. modifying the shear fitting at the top of substantial number of small entities (b) Incorporate the flight manual revisions each escape hatch. A report of under the criteria of the Regulatory included with the technical note referenced interference between the shear fitting on above. an escape hatch and a ceiling panel Flexibility Act. A copy of the final (c) Special flight permits may be issued in evaluation prepared for this action is accordance with sections 21.197 and 21.199 found while removing the escape hatch contained in the Rules Docket. A copy of the Federal Aviation Regulations (14 CFR on one of the affected airplanes of it may be obtained by contacting the 21.197 and 21.199) to operate the glider to a prompted this AD. The actions specified Rules Docket at the location provided location where the requirements of this AD by this AD are intended to prevent the under the caption ADDRESSES. can be accomplished. inability to utilize an escape hatch (d) An alternative method of compliance or during an emergency situation because List of Subjects in 14 CFR Part 39 adjustment of the compliance time that of interference. provides an equivalent level of safety may be Air transportation, Aircraft, Aviation approved by the Manager, Small Airplane DATES: Effective July 24, 1995. safety, Incorporation by reference, Directorate, FAA, 1201 Walnut, suite 900, The incorporation by reference of Safety. Kansas City, Missouri 64106. The request certain publications listed in the should be forwarded through an appropriate regulations is approved by the Director Adoption of the Amendment FAA Maintenance Inspector, who may add of the Federal Register as of July 24, comments and then send it to the Manager, 1995. Accordingly, pursuant to the Small Airplane Directorate. authority delegated to me by the ADDRESSES: Service information that Note 2: Information concerning the Administrator, the Federal Aviation existence of approved alternative methods of applies to this AD may be obtained from Administration amends part 39 of the compliance with this AD, if any, may be Jetstream Aircraft Limited, Manager Federal Aviation Regulations (14 CFR obtained from the Small Airplane Product Support, Prestwick Airport, part 39) as follows: Directorate. Ayrshire, KA9 2RW Scotland; telephone 29980 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations (44–292) 79888; facsimile (44–292) on these figures, the total cost impact of § 39.13 [Amended] 79703; or Jetstream Aircraft Inc., this AD on U.S. operators is estimated 2. Section 39.13 is amended by Librarian, P.O. Box 16029, Dulles to be $41,400. This figure is based on adding a new airworthiness directive to International Airport, Washington, DC the assumption that no affected owner/ read as follows: 20041–6029; telephone (703) 406–1161; operator has accomplished the required 95–12–06 Jetstream Aircraft Limited: facsimile (703) 406–1469. This modification. The FAA has no way of Amendment 39-9256; Docket No. 92– information may also be examined at determining how many airplanes have CE–13–AD. the Federal Aviation Administration incorporated this modification Applicability: Jetstream Models 3101 and (FAA), Central Region, Office of the (reworked the existing parts), but 3201 airplanes (serial numbers 757 through Assistant Chief Counsel, Room 1558, anticipates that numerous operators 912), certificated in any category. 601 E. 12th Street, Kansas City, Missouri have already reworked the existing Note 1: This AD applies to each airplane identified in the preceding applicability 64106; or at the Office of the Federal parts. This would reduce the cost Register, 800 North Capitol Street, NW., provision, regardless of whether it has been impact of this AD on U.S. operators. suite 700, Washington, DC. modified, altered, or repaired in the area subject to the requirements of this AD. For FOR FURTHER INFORMATION CONTACT: Mr. The regulations adopted herein will not have substantial direct effects on the airplanes that have been modified, altered, or Raymond A. Stoer, Program Officer, repaired so that the performance of the Brussels Aircraft Certification Office, States, on the relationship between the requirements of this AD is affected, the FAA, Europe, Africa, and Middle East national government and the States, or owner/operator must use the authority Office, c/o American Embassy, B–1000 on the distribution of power and provided in paragraph (d) of this AD to Brussels, Belgium; telephone (322) responsibilities among the various request approval from the FAA. This levels of government. Therefore, in approval may address either no action, if the 513.3830; facsimile (322) 230.6899; or current configuration eliminates the unsafe Mr. Sam Lovell, Project Officer, Small accordance with Executive Order 12612, condition, or different actions necessary to Airplane Directorate, Airplane it is determined that this final rule does address the unsafe condition described in Certification Service, FAA, 1201 not have sufficient federalism this AD. Such a request should include an Walnut, suite 900, Kansas City, Missouri implications to warrant the preparation assessment of the effect of the changed 64106; telephone (816) 426–6934; of a Federalism Assessment. configuration on the unsafe condition facsimile (816) 426–2169. addressed by this AD. In no case does the For the reasons discussed above, I presence of any modification, alteration, or SUPPLEMENTARY INFORMATION: A certify that this action (1) is not a repair remove any airplane from the proposal to amend part 39 of the Federal ‘‘significant regulatory action’’ under applicability of this AD. Aviation Regulations (14 CFR part 39) to Executive Order 12866; (2) is not a Compliance: Required within the next 50 include an AD that would apply to ‘‘significant rule’’ under DOT hours time-in-service after the effective date certain JAL Models 3101 and 3201 Regulatory Policies and Procedures (44 of this AD, unless already accomplished. airplanes was published in the Federal To prevent occupant injury during an FR 11034, February 26, 1979); and (3) Register on February 10, 1995 (60 FR emergency situation because of the inability will not have a significant economic 7921). The action proposed to require to remove an escape hatch, accomplish the impact, positive or negative, on a following: modifying the shear fitting at the top of (a) For both Models 3101 and 3201 each escape hatch. Accomplishment of substantial number of small entities under the criteria of the Regulatory airplanes, modify the shear fitting at the top the proposed action would be in of the right-hand escape hatch in accordance accordance with the Flexibility Act. A copy of the final with PART A of the ACCOMPLISHMENT ACCOMPLISHMENT INSTRUCTIONS evaluation prepared for this action is INSTRUCTIONS section of Jetstream Service section of Jetstream Service Bulletin 52– contained in the Rules Docket. A copy Bulletin (SB) 52–JM 7752, dated December JM 7752, dated December 17, 1991. of it may be obtained by contacting the 17, 1991. Interested persons have been afforded Rules Docket at the location provided (b) For Model 3201 airplanes, modify the shear fitting at the top of the left-hand escape under the caption ADDRESSES. an opportunity to participate in the hatch in accordance with PART B of the making of this amendment. No List of Subjects in 14 CFR Part 39 ACCOMPLISHMENT INSTRUCTIONS comments were received on the section of Jetstream SB 52–JM 7752, dated proposed rule or the FAA’s Air transportation, Aircraft, Aviation December 17, 1991. determination of the cost to the public. safety, Incorporation by reference, (c) Special flight permits may be issued in After careful review of all available Safety. accordance with sections 21.197 and 21.199 information related to the subject of the Federal Aviation Regulations (14 CFR presented above, the FAA has Adoption of the Amendment 21.197 and 21.199) to operate the airplane to determined that air safety and the a location where the requirements of this AD can be accomplished. public interest require the adoption of Accordingly, pursuant to the authority delegated to me by the (d) An alternative method of compliance or the rule as proposed except for minor adjustment of the compliance times that editorial corrections. The FAA has Administrator, the Federal Aviation provides an equivalent level of safety may be determined that these minor corrections Administration amends part 39 of the approved by the Manager, Brussels Aircraft will not change the meaning of the AD Federal Aviation Regulations (14 CFR Certification Office (ACO), FAA, Europe, and will not add any additional burden part 39) as follows: Africa, and Middle East Office, c/o American upon the public than was already Embassy, B–1000 Brussels, Belgium. The proposed. PART 39ÐAIRWORTHINESS request should be forwarded through an DIRECTIVES appropriate FAA Maintenance Inspector, The FAA estimates that 120 airplanes who may add comments and then send it to in the U.S. registry will be affected by the Manager, Brussels ACO. this AD, that it will take approximately 1. The authority citation for part 39 continues to read as follows: Note 2: Information concerning the 3 workhours per airplane to accomplish existence of approved alternative methods of the required action, and that the average Authority: 49 U.S.C. App. 1354(a), 1421 compliance with this AD, if any, may be labor rate is approximately $60 an hour. and 1423; 49 U.S.C. 106(g); and 14 CFR obtained from the Brussels ACO. Rework of existing parts costs 11.89. (e) The modification required by this AD approximately $165 per airplane. Based shall be done in accordance with Jetstream Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29981 Service Bulletin 52–JM 7752, dated FOR FURTHER INFORMATION CONTACT: Tim impact, positive or negative, on a December 17, 1991. This incorporation by Dulin, Aerospace Engineer, substantial number of small entities reference was approved by the Director of the Standardization Branch, ANM–113, under the criteria of the Regulatory Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be FAA, Transport Airplane Directorate, Flexibility Act. A final evaluation has obtained from Jetstream Aircraft Limited, 1601 Lind Avenue, SW., Renton, been prepared for this action and it is Manager Product Support, Prestwick Airport, Washington 98055–4056; telephone contained in the Rules Docket. A copy Ayrshire, KA9 2RW Scotland; or Jetstream (206) 227–2141; fax (206) 227–1320. of it may be obtained from the Rules Aircraft Inc., Librarian, P.O. Box 16029, SUPPLEMENTARY INFORMATION: A Docket at the location provided under Dulles International Airport, Washington, DC proposal to amend part 39 of the Federal the caption ADDRESSES. 20041–6029. Copies may be inspected at the FAA, Central Region, Office of the Assistant Aviation Regulations (14 CFR part 39) to List of Subjects in 14 CFR Part 39 include an airworthiness directive (AD) Chief Counsel, Room 1558, 601 E. 12th Air transportation, Aircraft, Aviation Street, Kansas City, Missouri, or at the Office that is applicable to certain Fokker of the Federal Register, 800 North Capitol Model F28 Mark 0100 series airplanes safety, Incorporation by reference, Street, NW., suite 700, Washington, DC. was published in the Federal Register Safety. (f) This amendment (39–9256) becomes on March 3, 1995 (60 FR 11944). That Adoption of the Amendment effective on July 24, 1995. action proposed to require installation Issued in Kansas City, Missouri, on May Accordingly, pursuant to the of reinforcement plates at left and right authority delegated to me by the 26, 1995. fuselage stations 14911 and 17011. Henry A. Armstrong, Administrator, the Federal Aviation Interested persons have been afforded Administration amends part 39 of the Acting Manager, Small Airplane Directorate, an opportunity to participate in the Aircraft Certification Service. Federal Aviation Regulations (14 CFR making of this amendment. Due part 39) as follows: [FR Doc. 95–13623 Filed 6–6–95; 8:45 am] consideration has been given to the BILLING CODE 4910±13±U single comment received. PART 39ÐAIRWORTHINESS The commenter supports the DIRECTIVES proposed rule. 14 CFR Part 39 After careful review of the available 1. The authority citation for part 39 [Docket No. 94±NM±241±AD; Amendment data, including the comment noted continues to read as follows: 39±9253; AD 95±12±03] above, the FAA has determined that air Authority: 49 U.S.C. App. 1354(a), 1421 safety and the public interest require the and 1423; 49 U.S.C. 106(g); and 14 CFR Airworthiness Directives; Fokker adoption of the rule as proposed. 11.89. Model F28 Mark 0100 Series Airplanes The FAA estimates that 45 airplanes § 39.13 [Amended] AGENCY: Federal Aviation of U.S. registry will be affected by this AD, that it will take approximately 160 2. Section 39.13 is amended by Administration, DOT. adding the following new airworthiness ACTION: Final rule. work hours per airplane to accomplish the required actions, and that the directive: SUMMARY: This amendment adopts a average labor rate is $60 per work hour. 95–12–03 Fokker: Amendment 39–9253. new airworthiness directive (AD), Required parts will cost approximately Docket 94–NM–241–AD. applicable to certain Fokker Model F28 $3,800 per airplane. Based on these Applicability: Model F28 Mark 0100 series Mark 0100 series airplanes, that requires figures, the total cost impact of the AD airplanes, serial numbers 11244 through installation of reinforcement plates at on U.S. operators is estimated to be 11371 inclusive, certificated in any category. certain fuselage stations. This $603,000, or $13,400 per airplane. Note 1: This AD applies to each airplane amendment is prompted by a report The total cost impact figure discussed identified in the preceding applicability indicating that cracks were found in the above is based on assumptions that no provision, regardless of whether it has been frame strips at certain fuselage stations modified, altered, or repaired in the area operator has yet accomplished any of subject to the requirements of this AD. For on a Model F28 Mark 0100 series the requirements of this AD action, and airplanes that have been modified, altered, or airplane test article due to fatigue- that no operator would accomplish repaired so that the performance of the related stress. The actions specified by those actions in the future if this AD requirements of this AD is affected, the this AD are intended to prevent such were not adopted. owner/operator must use the authority fatigue-related cracking, which could The regulations adopted herein will provided in paragraph (b) to request approval result in reduced structural integrity of not have substantial direct effects on the from the FAA. This approval may address the fuselage pressure vessel. States, on the relationship between the either no action, if the current configuration DATES: Effective July 7, 1995. national government and the States, or eliminates the unsafe condition; or different The incorporation by reference of actions necessary to address the unsafe on the distribution of power and condition described in this AD. Such a certain publications listed in the responsibilities among the various request should include an assessment of the regulations is approved by the Director levels of government. Therefore, in effect of the changed configuration on the of the Federal Register as of July 7, 1995. accordance with Executive Order 12612, unsafe condition addressed by this AD. In no ADDRESSES: The service information it is determined that this final rule does case does the presence of any modification, referenced in this AD may be obtained not have sufficient federalism alteration, or repair remove any airplane from from Fokker Aircraft USA, Inc., 1199 implications to warrant the preparation the applicability of this AD. North Fairfax Street, Alexandria, of a Federalism Assessment. Compliance: Required as indicated, unless Virginia 22314. This information may be For the reasons discussed above, I accomplished previously. examined at the Federal Aviation certify that this action (1) is not a To prevent cracking in the frame strips at Administration (FAA), Transport ‘‘significant regulatory action’’ under fuselage stations 14911 and 17011, which could result in reduced structural integrity of Airplane Directorate, Rules Docket, Executive Order 12866; (2) is not a the fuselage pressure vessel, accomplish the 1601 Lind Avenue, SW., Renton, ‘‘significant rule’’ under DOT following: Washington; or at the Office of the Regulatory Policies and Procedures (44 (a) Prior to the accumulation of 24,000 total Federal Register, 800 North Capitol FR 11034, February 26, 1979); and (3) flight cycles, or within 6 months after the Street, NW., suite 700, Washington, DC. will not have a significant economic effective date of this AD, whichever occurs 29982 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations later, install reinforcement plates at left and by this AD are intended to prevent ice each affected airplane is in compliance right fuselage stations 14911 and 17011, in accumulation on the elevator horn, with the action, and that those airplanes accordance with Fokker Service Bulletin which could lead to loss of control of continue to be in compliance. Even if all SBF100–53–072, dated March 12, 1993. the airplane. owners/operators have complied with (b) An alternative method of compliance or adjustment of the compliance time that DATES: Effective July 19, 1995. this action, the AD will ensure that provides an acceptable level of safety may be The incorporation by reference of these airplanes continue to have these used if approved by the Manager, certain publications listed in the pneumatic deicers installed and that Standardization Branch, ANM–113, FAA, regulations is approved by the Director any airplanes added to the U.S. registry Transport Airplane Directorate. Operators of the Federal Register as of July 19, will have pneumatic deicers installed. shall submit their requests through an 1995. The AD is unchanged as a result of this appropriate FAA Principal Maintenance ADDRESSES: Service information that comment. Inspector, who may add comments and then applies to this AD may be obtained from No comments were received on the send it to the Manager, Standardization FAA’s determination of the cost to the Branch, ANM–113. the SOCATA Groupe AEROSPATIALE, Socata Product Support, Aeroport public. Note 2: Information concerning the After careful review of all available existence of approved alternative methods of Tarbes-Ossun-Lourdes, B P 930, 65009 Tarbes Cedex, France; telephone information including the comment compliance with this AD, if any, may be discussed above, the FAA has obtained from the Standardization Branch, 62.41.74.26; facsimile 62.41.74.32; or ANM–113. the Product Support Manager, U.S. determined that air safety and the (c) Special flight permits may be issued in AEROSPATIALE, 2701 Forum Drive, public interest require the adoption of the rule as proposed except for minor accordance with sections 21.197 and 21.199 Grand Prairie, Texas 75053; telephone of the Federal Aviation Regulations (14 CFR editorial corrections. The FAA has (214) 641–3614; facsimile (214) 641– 21.197 and 21.199) to operate the airplane to determined that these minor corrections 3527. This information may also be a location where the requirements of this will not change the meaning of the AD examined at the FAA, Central Region, 0AD can be accomplished. and will not add any additional burden Office of the Assistant Chief Counsel, (d) The installation shall be done in upon the public than was already accordance with Fokker Service Bulletin Room 1558, 601 E. 12th Street, Kansas proposed. SBF100–53–072, dated March 12, 1993. This City, Missouri 64106; or at the Office of incorporation by reference was approved by The FAA estimates that 20 airplanes the Federal Register, 800 North Capitol in the U.S. registry will be affected by the Director of the Federal Register in Street, NW., suite 700, Washington, DC. accordance with 5 U.S.C. 552(a) and 1 CFR this AD, that it will take approximately part 51. Copies may be obtained from Fokker FOR FURTHER INFORMATION CONTACT: Mr. 25 workhours per airplane to Aircraft USA, Inc., 1199 North Fairfax Street, Raymond A. Stoer, Program Officer, accomplish the required action, and that Alexandria, Virginia 22314. Copies may be Brussels Aircraft Certification Office, the average labor rate is approximately inspected at the FAA, Transport Airplane FAA, Europe, Africa, and Middle East $60 an hour. Parts cost $3,710 per Directorate, 1601 Lind Avenue, SW., Renton, Office, c/o American Embassy, B–1000 airplane. Based on these figures, the Washington; or at the Office of the Federal Brussels, Belgium; telephone (322) total cost impact of this AD on U.S. Register, 800 North Capitol Street, NW., suite 513.38.30; facsimile (322) 230.68.99; or operators is estimated to be $104,200. 700, Washington, DC. Mr. Mike Kiesov, Aerospace Engineer, (e) This amendment becomes effective on This figure is based upon the July 7, 1995. FAA, Small Airplane Directorate, 1201 assumption that no affected airplane/ Walnut Street, suite 900, Kansas City, Issued in Renton, Washington, on May 26, operator has accomplished the required 1995. Missouri 64106; telephone (816) 426– action. Socata has informed the FAA 6934; facsimile (816) 426–2169. Darrell M. Pederson, that it believes all affected airplane SUPPLEMENTARY INFORMATION: A owners/operators have already Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. proposal to amend part 39 of the Federal accomplished the required installation. Aviation Regulations (14 CFR part 39) to With this in mind, this action will [FR Doc. 95–13502 Filed 6–6–95; 8:45 am] include an AD that would apply to impose no cost impact upon U.S. BILLING CODE 4910±13±U certain Socata TBM 700 airplanes was operators. published in the Federal Register on The regulations adopted herein will 14 CFR Part 39 January 20, 1995 (60 FR 4117). The not have substantial direct effects on the action proposed to require installing States, on the relationship between the [Docket No. 94±CE±26±AD; Amendment 39± pneumatic deicers on the elevator horn national government and the States, or 9249; AD 95±11±16] leading edges. Accomplishment of the on the distribution of power and proposed installation would be in responsibilities among the various Airworthiness Directives; SOCATA accordance with Socata Technical levels of government. Therefore, in Groupe AEROSPATIALE TBM 700 Instruction of Modification No. OPT70 accordance with Executive Order 12612, Airplanes K020–30, dated February 1993. it is determined that this final rule does AGENCY: Federal Aviation Interested persons have been afforded not have sufficient federalism Administration, DOT. an opportunity to participate in the implications to warrant the preparation ACTION: Final rule. making of this amendment. Due of a Federalism Assessment. consideration has been given to the one For the reasons discussed above, I SUMMARY: This amendment adopts a comment received. certify that this action (1) is not a new airworthiness directive (AD) that Socata recommends that AD action is ‘‘significant regulatory action’’ under applies to certain SOCATA Groupe not justified because it believes all Executive Order 12866; (2) is not a AEROSPATIALE (Socata) TBM 700 owners/operators of the affected ‘‘significant rule’’ under DOT airplanes. This action requires installing airplanes have installed pneumatic Regulatory Policies and Procedures (44 pneumatic deicers on the elevator horn deicers on the elevator horn leading FR 11034, February 26, 1979); and (3) leading edges. Ice accumulation on one edges. The FAA does not concur that will not have a significant economic of the affected airplanes during flight AD action is not justified even if all impact, positive or negative, on a testing in icing conditions prompted the owners/operators may have already substantial number of small entities required action. The actions specified complied. AD’s are issued to assure that under the criteria of the Regulatory Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29983 Flexibility Act. A copy of the final (b) Special flight permits may be issued in EFFECTIVE DATE: June 7, 1995. evaluation prepared for this action is accordance with sections 21.197 and 21.199 ADDRESSES: Secretary to the Board, contained in the Rules Docket. A copy of the Federal Aviation Regulations (14 CFR Railroad Retirement Board, 844 Rush of it may be obtained by contacting the 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD Street, Chicago, Illinois 60611. Rules Docket at the location provided can be accomplished. FOR FURTHER INFORMATION CONTACT: under the caption ADDRESSES. (c) An alternative method of compliance or Michael C. Litt, Bureau of Law, Railroad List of Subjects in 14 CFR Part 39 adjustment of the compliance time that Retirement Board, 844 Rush Street, provides an equivalent level of safety may be Chicago, Illinois 60611, (312) 751–4929, Air transportation, Aircraft, Aviation approved by the Manager, Brussels Aircraft TDD (312) 751–4701. safety, Incorporation by reference, Certification Office (ACO), FAA, Europe, SUPPLEMENTARY INFORMATION: OMB Safety. Africa, and Middle East Office, c/o American Embassy, B–1000 Brussels, Belgium. The Circular A–25 establishes Federal policy Adoption of the Amendment request shall be forwarded through an regarding fees to be assessed for special Accordingly, pursuant to the appropriate FAA Maintenance Inspector, benefits. In the case of the Railroad authority delegated to me by the who may add comments and then send it to Retirement Board those benefits would Administrator, the Federal Aviation the Manager, Brussels ACO. be the provision of custom tailored or Administration amends part 39 of the Note 2: Information concerning the non-routine information services. The Federal Aviation Regulations (14 CFR existence of approved alternative methods of regulation requires payment of the part 39) as follows: compliance with this AD, if any, may be Board’s actual costs, as defined in the obtained from the Brussels ACO. regulation, for the provision of such PART 39ÐAIRWORTHINESS (d) The installation required by this AD services. Consistent with OMB Circular DIRECTIVES shall be done in accordance with Socata A–25, the regulation provides that if it Technical Instruction of Modification No. is determined that the identity of the 1. The authority citation for part 39 OPT70 K020–30, dated February 1993. This specific beneficiary is obscure and that continues to read as follows: incorporation by reference was approved by the Director of the Federal Register in provision of the information can be Authority: 49 U.S.C. App. 1354(a), 1421 accordance with 5 U.S.C. 552(a) and 1 CFR considered primarily as benefiting and 1423; 49 U.S.C. 106(g); and 14 CFR part 51. Copies may be obtained from broadly the general public, then the 11.89. SOCATA Groupe AEROSPATIALE, Socata Board may determine in a particular § 39.13 [Amended] Product Support, Aeroport Tarbes-Ossun- case not to charge for the service. Lourdes, B P 930, 65009 Tarbes Cedex, However, consistent with the authority 2. Section 39.13 is amended by France; or the Product Support Manager, U.S. adding a new AD to read as follows: contained in section 12(d) of the AEROSPATIALE, 2701 Forum Drive, Grand Railroad Unemployment Insurance Act 95–11–16 SOCATA Groupe Prairie, Texas 75053. Copies may be (which is incorporated into the Railroad inspected at the FAA, Central Region, Office AEROSPATIALE: Amendment 39–9249; Retirement Act by section 7(b)(3) of that Docket No. 94–CE–26–AD. of the Assistant Chief Counsel, Room 1558, 601 E. 12th Street, Kansas City, Missouri, or Act), the regulation provides that Applicability: TBM 700 airplanes, serial charges may be assessed in any specific numbers 1 to 49, certificated in any category. at the Office of the Federal Register, 800 North Capitol Street, NW., suite 700, case. This regulation does not cover Note 1: This AD applies to each airplane Washington, DC. information which is required to be identified in the preceding applicability (e) This amendment (39–9249) becomes provision, regardless of whether it has been disclosed by statute or regulation such effective on July 19, 1995. modified, altered, or repaired in the area as information required to be disclosed subject to the requirements of this AD. For Issued in Kansas City, Missouri, on May under the Freedom of Information Act. airplanes that have been modified, altered, or 23, 1995. On March 2, 1995, the Board repaired so that the performance of the Henry A. Armstrong, published this rule as a proposed rule requirements of this AD is affected, the Acting Manager, Small Airplane Directorate, (60 FR 11639), inviting comments on or owner/operator must use the authority Aircraft Certification Service. before May 1, 1995. One comment was provided in paragraph (c) of this AD to [FR Doc. 95–13126 Filed 6–6–95; 8:45 am] received. The commentor suggested request approval from the FAA. This three amendments to the proposed approval may address either no action, if the BILLING CODE 4910±13±U current configuration eliminates the unsafe regulation: (1) Railroad employers condition, or different actions necessary to should be allowed to seek custom- address the unsafe condition described in RAILROAD RETIREMENT BOARD tailored information without charge as this AD. Such a request should include an such services are paid by railroad assessment of the effect of the changed 20 CFR Part 200 employers through employer taxes configuration on the unsafe condition which pay for the administrative addressed by this AD. In no case does the RIN 3220±AB12 expenses of the Board; (2) if fees are presence of any modification, alteration, or charged, the Board should be required repair remove any airplane from the General Administration applicability of this AD. to provide the estimated cost within a AGENCY specified period; and (3) the limit of Compliance: Required within the next 100 : Railroad Retirement Board. hours time-in-service after the effective date ACTION: Final rule. $1,000.00 for waiver of fees without of this AD, unless already accomplished. approval of the three-member Board is To prevent ice accumulation on the SUMMARY: The Railroad Retirement too low. In response thereto: (1) The elevator horn, which could lead to loss of Board (Board) amends its regulations to Board believes that, although the costs control of the airplane, accomplish the explain when the Board will provide of administration of the agency as a following: custom tailored information to a whole are borne by the railroad (a) Install pneumatic deicers on the member of the public and to set forth industry, it is more equitable to shift the elevator horn leading edges in accordance the charges for such special services. In costs for providing information to those with Socata Technical Instruction of Modification No. OPT70 K020–30, dated addition, the Board amends its elements of that industry which use the February 1993. This installation is referenced regulations to explain when custom service in question than to have the in Socata TBM Service Bulletin SB 70–020– tailored information will be provided entire industry pay for those services 30, dated February 1993. without charging for that service. indirectly through employment taxes; 29984 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations (2) while the Board believes that an needs to program computers to provide (vii) Statutory supersession. Where a estimate should be provided within a data in a particular format or to compile Federal statute prohibits the assessment reasonable period of time the Board selected items from records, provide of a charge for a service or addresses an does not believe that the regulation statistical data, ratios, proportions, aspect of that charge, the statute shall should contain a specific time limit in percentages, etc. If this data is not take precedence over this paragraph (o). view of the wide ranging types of already compiled and available, the end (p) Assessment of a fee with respect requests that could be made; and (3) the product would be the result of custom to the provision of custom tailored cap of $1,000.00 for waiver of fees tailored information services. information where the identification of without approval of the three-member (2) Providing custom tailored the beneficiary is obscure and where Board reflects the desire of the Board information. The Board is not required provision of the information can be seen itself to maintain close control over to provide custom tailored information. as benefiting the public generally. When expenditures by the agency. It will do so only when the appropriate the identification of a specific Accordingly, the Board has not fees have been paid as provided in beneficiary with respect to the provision amended the text of the proposed rule. paragraph (o)(4) of this section and of custom tailored information is The Board, in conjunction with the when the request for such information obscure, the service can be considered Office of Management and Budget, has will not divert staff and equipment from primarily as benefiting broadly the determined that this is not a significant the Board’s primary responsibilities. general public, and the estimated cost of regulatory action for purposes of (3) Requesting custom tailored providing the information is less than Executive Order 12866. Therefore, no information. Information may be $1,000.00, the Director of regulatory impact analysis is required. requested in person, by telephone, or by Administration shall determine whether There are no information collections mail. Any request should reasonably or not a fee is to be charged. In any such associated with this rule. describe the information wanted and case where the cost is $1,000.00 or may be sent to the Director of more, the request shall be referred by List of Subjects in 20 CFR Part 200 Administration, Railroad Retirement the Director of Administration to the Railroad employees, Railroad Board, 844 North Rush Street, Chicago, three-member Board for a determination retirement, Railroad unemployment Illinois 60611–2092. whether or not a fee is to be assessed. insurance. (4) Fee schedule. Requests for custom Dated: May 30, 1995. For the reasons set out in the tailored information are chargeable By Authority of the Board. preamble, title 20, chapter II, part 200 of according to the following schedule: For the Board. the Code of Federal Regulations is (i) Manual searching for records. Full Beatrice Ezerski, amended as follows: cost of the time of the employees who Secretary to the Board. perform the service, even if records [FR Doc. 95–13845 Filed 6–6–95; 8:45 am] PART 200ÐGENERAL cannot be found, management and BILLING CODE 7905±01±P ADMINISTRATION supervisory costs, plus the full costs of any machine time and materials the 1. The authority citation for part 200 employee uses. Consulting and other continues to read as follows: indirect costs will be assessed as DEPARTMENT OF HEALTH AND HUMAN SERVICES Authority: 45 U.S.C. 231f(b)(5) and 45 appropriate. U.S.C. 362; § 200.4 also issued under 5 U.S.C. (ii) Photocopying or reproducing Food and Drug Administration 552; § 200.5 also issued under 5 U.S.C. 552a; records on magnetic tapes or computer § 200.6 also issued under 5 U.S.C. 552b; and diskettes. The charge for making 21 CFR Part 522 § 200.7 also issued under 31 U.S.C. 3717. photocopies of any size document shall 2. Section 200.4 is amended by be $.10 per copy per page. The charge Implantation or Injectable Dosage adding paragraphs (o) and (p) to read as for reproducing records on magnetic Form New Animal Drugs; follows: tapes or computer diskettes is the full Dexamethasone Injection cost of the operator’s time plus the full AGENCY: § 200.4 Availability of information to cost of the machine time and the Food and Drug Administration, public. materials used. HHS. * * * * * (iii) Use of electronic data processing ACTION: Final rule. (o) Custom tailored information equipment to obtain records. Full cost services; Fees charged. This paragraph SUMMARY: The Food and Drug for the service, including computer Administration (FDA) is amending the and paragraph (p) of this section set search time and computer runs and forth the policy of the Railroad animal drug regulations to reflect printouts, and the time of computer approval of an abbreviated new animal Retirement Board with respect to the programmers and operators and of other assessment of a fee for providing custom drug application (ANADA) filed by employees. Phoenix Pharmaceutical, Inc. The tailored information where requested. (iv) Certification or authentication. ANADA provides for use of Except as provided in paragraphs Full cost of certification and dexamethasone injection in cattle for (o)(4)(vii) and (p) of this section, a fee authentication. shall be charged for providing custom (v) Providing other special services. the treatment of primary bovine ketosis tailored information. Full cost of the time of the employee and in dogs, cats, cattle, and horses as (1) Definition: Custom tailored who performs the service, management an anti-inflammatory agent. information. Custom tailored and supervisory costs, plus the full costs EFFECTIVE DATE: June 7, 1995. information is information not of any machine time and materials the FOR FURTHER INFORMATION CONTACT: otherwise required to be disclosed employee uses. Consulting and other Melanie R. Berson, Center for Veterinary under this part but which can be created indirect costs will be assessed as Medicine (HFV–135), Food and Drug or extracted and manipulated, appropriate. Administration, 7500 Standish Pl., reformatted, or otherwise prepared to (vi) Special forwarding arrangements. Rockville, MD 20855, 301–594–1643. the specifications of the requester from Full cost of special arrangements for SUPPLEMENTARY INFORMATION: Phoenix existing records. For example, the Board forwarding material requested. Pharmaceutical, Inc., 4621 Easton Rd., Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29985 P.O. Box 6457 Farleigh Station, St. § 522.540 Dexamethasone injection. mg of gentamicin/mL as well as 50 mg Joseph, MO 64506–0457, has filed (a) * * * of gentamicin/mL injection. At this ANADA 200–108, which provides for (2) Sponsor. See Nos. 000061 and time, § 522.1044 is amended to indicate intravenous or intramuscular use of 057319 in § 510.600(c) of this chapter. that both concentrations of the drug are Dexamethasone Solution (2 milligrams * * * * * approved for use in day-old chickens. (mg) of dexamethasone per milliliter Dated: May 23, 1995. In accordance with the freedom of (mL)) in cattle for the treatment of information provisions of part 20 (21 Stephen F. Sundlof, primary bovine ketosis and in dogs, CFR part 20) and § 514.11(e)(2)(ii) (21 cats, cattle, and horses as an anti- Director, Center for Veterinary Medicine. CFR 514.11(e)(2)(ii)), a summary of inflammatory agent. [FR Doc. 95–13830 Filed 6–6–95; 8:45 am] safety and effectiveness data and Phoenix Pharmaceutical, Inc.’s, BILLING CODE 4160±01±F information submitted to support ANADA 200–108 for Dexamethasone approval of this application may be seen Solution (2 mg/mL) is approved as a in the Dockets Management Branch generic copy of Schering-Plough Animal 21 CFR Part 522 (HFA–305), Food and Drug Health Corp.’s NADA 12–559 for Administration, rm. 1–23, 12420 Azium (dexamethasone solution). The Implantation or Injectable Dosage Parklawn Dr., Rockville, MD 20857, ANADA is approved as of April 13, Form New Animal Drugs; Gentamicin between 9 a.m. and 4 p.m., Monday 1995, and the regulations are amended Sulfate Injection through Friday. in 21 CFR 522.540(a)(2) to reflect the AGENCY: The agency has carefully considered approval. The basis for approval is Food and Drug Administration, HHS. the potential environmental effects of discussed in the freedom of information this action. FDA has concluded that the ACTION: Final rule. summary. action will not have a significant impact In accordance with the freedom of on the human environment, and that an information provisions of part 20 (21 SUMMARY: The Food and Drug environmental impact statement is not CFR part 20) and § 514.11(e)(2)(ii) (21 Administration (FDA) is amending the required. The agency’s finding of no CFR 514.11(e)(2)(ii)), a summary of animal drug regulations to reflect significant impact and the evidence safety and effectiveness data and approval of an abbreviated new animal supporting that finding, contained in an information submitted to support drug application (ANADA) filed by environmental assessment, may be seen approval of this application may be seen Sanofi Animal Health, Inc. The ANADA in the Dockets Management Branch in the Dockets Management Branch provides for use of gentamicin sultate (address above) between 9 a.m. and 4 (HFA–305), Food and Drug injection in day-old chickens for the p.m., Monday through Friday. Administration, rm. 1–23, 12420 prevention of early mortality caused by Parklawn Dr., Rockville, MD 20857, Escherichia coli, Salmonella List of Subjects in 21 CFR Part 522 between 9 a.m. and 4 p.m., Monday typhimurium, and Pseudomonas Animal drugs. through Friday. aeruginosa susceptible to gentamicin The agency has carefully considered sulfate. Therefore, under the Federal Food, the potential environmental effects of EFFECTIVE DATE: June 7, 1995. Drug, and Cosmetic Act and under this action. FDA has concluded that the authority delegated to the Commissioner FOR FURTHER INFORMATION CONTACT: of Food and Drugs and redelegated to action will not have a significant impact Melanie R. Berson, Center for Veterinary on the human environment, and that an the Center for Veterinary Medicine, 21 Medicine (HFV–135), Food and Drug CFR part 522 is amended as follows: environmental impact statement is not Administration, 7500 Standish Pl., required. The agency’s finding of no Rockville, MD 20855, 301–594–1643. significant impact and the evidence PART 522ÐIMPLANTATION OR SUPPLEMENTARY INFORMATION: Sanofi supporting that finding, contained in an INJECTABLE DOSAGE FORM NEW Animal Health, Inc., 7101 College Blvd., environmental assessment, may be seen ANIMAL DRUGS Overland Park, KS 66210, has filed in the Dockets Management Branch ANADA 200–147, which provides for (address above) between 9 a.m. and 4 1. The authority citation for 21 CFR use of gentamicin sulfate injection in p.m., Monday through Friday. part 522 continues to read as follows: day-old chickens for the prevention of Authority: Sec. 512 of the Federal Food, List of Subjects in 21 CFR Part 522 early mortality caused by E. coli, S. Drug, and Cosmetic Act (21 U.S.C. 360b). Animal drugs. typhimurium, and P. aeruginosa Therefore, under the Federal Food, susceptible to gentamicin sulfate. 2. Section 522.1044 is amended by Drug, and Cosmetic Act and under Sanofi Animal Health, Inc.’s, ANADA revising paragraphs (a) and (b)(1) and by authority delegated to the Commissioner 200–147 for gentamicin sulfate injection adding new paragraph (b)(4) to read as of Food and Drugs and redelegated to (100 milligrams of gentamicin per follows: milliliter (mg/mL) solution) is approved the Center for Veterinary Medicine, 21 § 522.1044 Gentamicin sulfate injection. CFR part 522 is amended as follows: as a generic copy of Schering-Plough Animal Health’s NADA 101–862 for (a) Specifications. Each milliliter of PART 522ÐIMPLANTATION OR Garasol (50 and 100 mg of gentamicin/ sterile aqueous solution contains INJECTABLE DOSAGE FORM NEW mL solution) injection. The ANADA is gentamicin sulfate equivalent to either ANIMAL DRUGS approved as of April 10, 1995, and the 5, 50, or 100 milligrams of gentamicin. regulations are amended in § 522.1044 (b) Sponsors. (1) See No. 000061 in 1. The authority citation for 21 CFR (21 CFR 522.1044) to reflect the § 510.600(c) of this chapter for use of 5 part 522 continues to read as follows: approval. The basis of approval is milligrams-per-milliliter solution in Authority: Sec. 512 of the Federal Food, discussed in the freedom of information swine as in paragraph (d)(4) of this Drug, and Cosmetic Act (21 U.S.C. 360b). summary. section, for use of 50 milligrams-per- 2. Section 522.540 is amended by In addition, the regulation failed to solution in dogs, cats, and chickens as revising paragraph (a)(2) to read as reflect that Schering-Plough’s NADA in paragraph (d)(1) and (d)(3) of this follows: 101–862 was approved for use of 100 section, for use of 100 milligrams-per- 29986 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations milliliter solution in chickens as in board selects standards each year Analysis of Impacts paragraph (d)(3) of this section. according to the provisions of the Act. FDA has examined the impacts of the * * * * * The board bases its selection on tea (4) See No. 050604 for use of 100 samples submitted by members of the final rule under Executive Order 12866 milligrams-per-milliliter solution in tea trade to the board. Relying primarily and the Regulatory Flexibility Act (Pub. chickens as in paragraph (d)(3) of this on organoleptic examination, the board L. 96–354). Executive Order 12866 section. selects one tea to represent the standard directs agencies to assess all costs and benefits of available regulatory * * * * * for each major type of tea imported into the United States. In choosing a alternatives and, when regulation is Dated: May 22, 1995. standard, the board tries to select one at necessary, to select regulatory Stephen F. Sundlof, least equal in quality to that of the approaches that maximize net benefits Director, Center for Veterinary Medicine. previous year. The Act prohibits the (including potential economic, [FR Doc. 95–13828 Filed 6–6–95; 8:45 am] importation of a tea that is inferior to environmental, public health and safety, BILLING CODE 4160±01±F the annual tea standard. Under the Act, and other advantages; distributive the importation of a tea may be impacts; and equity). The agency withheld until FDA examines the tea believes that this final rule is consistent 21 CFR Part 1220 and is sure that it complies with the with the regulatory philosophy and [Docket No. 95N±0120] annual standard. principles identified in the Executive The annual meeting of the board is Order. In addition, the final rule is not Regulations Under the Tea Importation open to the public and is announced in a significant regulatory action as defined Act; Tea Standards advance in the Federal Register. At the by the Executive Order and so is not annual meeting any interested person subject to review under the Executive AGENCY: Food and Drug Administration, may present data, information, or views Order. HHS. orally or in writing regarding new The Regulatory Flexibility Act ACTION: Final rule. standards. requires agencies to analyze regulatory SUMMARY: The Food and Drug The annual tea standards are prepared options that would minimize any Administration (FDA) is announcing the and submitted to the Secretary of Health significant impact of a rule on small establishment of tea standards for the and Human Services by the board (21 entities. Because the tea standards, used year beginning May 1, 1995, and ending CFR 1220.41). by buyers for the U.S. market, protect April 30, 1996. The tea standards are Should a tea importer be dissatisfied consumers, importers, and sellers from provided for under the Tea Importation with an FDA tea examiner’s rejection of acceptance of teas that are inferior in Act (the Act). The Act prohibits the a shipment of tea, the importer can refer purity, quality, and fitness for importation of a tea that is inferior to its complaint to the U.S. Board of Tea consumption, the agency certifies that the annual tea standard. Under the Act, Appeals and then to the U.S. Court of the final rule will not have a significant the importation of a tea may be Appeals. FDA is unaware of any economic impact on a substantial withheld until FDA examines the tea complaints or arguments having ever number of small entities. Therefore, and is sure that it complies with the occurred concerning a designated under the Regulatory Flexibility Act, no annual standard. standard, despite the many years since further analysis is required. DATES: Effective May 1, 1995; written the enactment of the Act. Interested persons may, on or before comments by July 7, 1995. FDA concludes that notice and July 7, 1995, submit to the Dockets ADDRESSES: Submit written comments comment rulemaking to set tea Management Branch (address above) to the Docket Management Branch standards is impracticable, contrary to written comments regarding this (HFA–305), Food and Drug the public interest, and unnecessary by regulation. Two copies of any comments Administration, rm. 1–23, 12420 virtue of the factors discussed above, are to be submitted, except that Parklawn Dr., Rockville, MD 20857. i.e., the unique, longstanding individuals may submit one copy. FOR FURTHER INFORMATION CONTACT: procedures that apply to establishing a Comments are to be identified with the Michelle A. Smith, Center for Food standard, the fact that standards are docket number found in brackets in the Safety and Applied Nutrition (HFS– based principally on organoleptic heading of this document. Received 158), Food and Drug Administration, examinations by tea experts, the public comments may be seen in the office 200 C St. SW., Washington, DC 20204, participation opportunities already above between 9 a.m. and 4 p.m., 202–205–5099. provided, and the timeframes required Monday through Friday. Any changes in for issuing annual standards. Hence, the SUPPLEMENTARY INFORMATION: Because of this regulation justified by such agency is not following notice and the unique nature of the decisionmaking comments will be the subject of a comment rulemaking procedures in process for establishing annual further amendment. standards for tea, the procedural establishing the final tea standards for protections that are part of this process, 1995. List of Subjects in 21 CFR Part 1220 and the short period within which Environmental Impact Administrative practice and standards must be set, FDA has never, procedure, Customs duties and since the enactment in 1897 of the Act The agency has determined under 21 inspection, Imports, Public health, Tea. (21 U.S.C. 41), used notice and CFR 25.24(b)(1) that this action is of a comment rulemaking for tea standards. type that does not individually or Therefore, under the authority Each final rule setting the standards is cumulatively have a significant impact delegated to the Secretary of Health and based on the recommendations of the on the human environment. Therefore, Human Services by the Tea Importation Board of Tea Experts (the board), which neither an environmental assessment Act and under authority delegated to the is comprised of tea experts who are nor an environmental impact statement Commissioner of Food and Drugs, 21 representative of the tea trade. The is required. CFR part 1220 is amended as follows: Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29987 PART 1220ÐREGULATIONS UNDER Management or his or her designee. This the objectives underlying its general THE TEA IMPORTATION ACT rule is similar to regulations adopted by appropriations. other Federal agencies, including the The indemnification policy will 1. The authority citation for 21 CFR Department of Justice (28 CFR part 50), permit, but does not require, the part 1220 continues to read as follows: the Department of the Treasury (31 CFR Department to indemnify a Department Authority: 21 U.S.C. 41–50; 19 U.S.C. part 3) and the Agency for International employee who faces an adverse verdict, 1311. Development (22 CFR part 207). judgment or other monetary award, 2. Section 1220.40 is amended by EFFECTIVE DATE: June 7, 1995. provided that the actions giving rise to revising paragraph (a) to read as follows: FOR FURTHER INFORMATION CONTACT: the judgment were taken within the Jean Bailly, Attorney-Adviser, Office of scope of employment and that such § 1220.40 Tea standards. the Assistant Legal Adviser for indemnification is in the interest of the (a) Samples for standards of the Legislation and Management, U.S. United States, as determined by the following teas, prepared, identified, and Department of State, (202) 647–5154. Under Secretary for Management or his submitted by the Board of Tea Experts SUPPLEMENTARY INFORMATION: Lawsuits or her designee. on February 28, 1995, are hereby fixed against federal employees in their Absent exceptional circumstances, the and established as the standards of individual capacities have proliferated Department will not agree either to purity, quality, and fitness for since the 1971 Supreme Court decision indemnify or to settle a case before entry consumption under the Tea Importation in Bivens v. Six Unknown Named of an adverse judgment. This approach Act for the year beginning May 1, 1995, Agents of the Federal Bureau of is intended to discourage the filing of and ending April 30, 1996: Narcotics, 403 U.S. 388. These suits lawsuits against federal employees in (1) Black Tea (for all teas except those personally attack officials at all levels of their individual capacities solely in from the People’s Republic of China government and target many federal order to pressure the Government into (China), Taiwan (Formosa), Iran, Japan, activities, particularly law enforcement. settlement. In the usual case, the Russia, Turkey, and Argentina). The Federal Liability Reform and Tort Department will not settle a case before (2) Black Tea (for Argentina teas). Compensation Act of 1988, Public Law trial and judgment merely because a (3) Black Tea (for teas from the 100–694, permits substitution of the dispositive motion filed on behalf of the People’s Republic of China (China), Government in many personal liability employee has been denied. Taiwan (Formosa), Iran, Japan, Russia, tort suits against officials. However, Personal services contractors are and Turkey). substitution is not possible in some considered employees for purposes of (4) Green Tea (of all origins). cases, notably claims arising under the this policy. This policy is applicable to (5) Formosa Oolong. Constitution and claims arising under any actions pending against Department (6) Canton Oolong (for all Canton foreign law. Although the Department employees as of its effective date. types from the People’s Republic of has had few such cases, the risk of In addition to the general China (China) and Taiwan (Formosa)). personal liability and the burden of indemnification provisions contained in (7) Scented Black Tea. defending suits for money damages is these proposed regulations, the (8) Spiced Tea. clearly present for Department These standards apply to tea shipped Department will follow its more specific employees. An adverse judgment in from abroad on or after May 1, 1995. indemnification policy with respect to such a case has detrimental damages awarded against Department * * * * * consequences to the employee, both health care personnel for malpractice Dated: May 31, 1995. monetary and otherwise. Fear of claims within the scope of 22 U.S.C. William B. Schultz, personal liability also has potentially 2702. The Department anticipates Deputy Commissioner for Policy. adverse consequences for State publishing regulations relating to this [FR Doc. 95–13885 Filed 6–6–95; 8:45 am] Department operations, decisionmaking, policy of indemnification. and policy determinations. The prospect BILLING CODE 4160±01±F Paperwork Reduction Act of personal liability, and even the uncertainty as to what conduct may This regulation is not subject to the DEPARTMENT OF STATE result in a lawsuit against an employee Paperwork Reduction Act because it personally, may tend to intimidate deals solely with internal Department 22 CFR Part 21 employees and stifle initiative and rules governing personnel. decisive action. [Pub. Not. 2210] The Department believes a policy Cost/Regulatory Analysis with respect to indemnification in such Because this rule relates solely to Office of the Legal Adviser; cases will serve to minimize this agency management and personnel, it is Indemnification of Department of State impediment to Department operations not subject to the notice and delayed Employees and would accord Department effective date provisions of the AGENCY: Department of State. employees the same protection now Administrative Procedure Act (5 U.S.C. ACTION: Final rule and statement of enjoyed by most state and local 553). It is likewise exempt from the policy. government employees as well as those procedures of E.O. 12866 (Regulatory of most corporate employers. This Planning and Review). Because no SUMMARY: This statement announces a policy is supported by the general notice of proposed rulemaking is Department of State policy to permit principle that an agency has the required for this rule, the provisions of payment of Department funds to authority to expend appropriated funds the Regulatory Flexibility Act (5 U.S.C. indemnify Department employees who to further the mission of the agency and 601–612) do not apply. suffer adverse money judgments as a the objectives underlying the List of Subjects in 22 CFR Part 21 result of acts within the scope of their appropriation. Pursuant to this employment and to settle personal principle, the Department of State Administrative practice and damages claims involving such acts, as believes that indemnification is related procedure, Government employees, Tort determined by the Under Secretary for both to the Department’s mission and to claims. 29988 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations Accordingly, 22 CFR is hereby representation by the Department of ACTION: Final rule. amended by adding a new part 21 as Justice in accordance with 28 CFR follows: 50.15. SUMMARY: The Agency is adopting a (f) The employee may thereafter final rule amending existing regulations PART 21ÐINDEMNIFICATION OF request indemnification to satisfy a governing the United States Information EMPLOYEES verdict, judgment, or award entered Agency’s administration of the against the employee. The employee Agreement for Facilitating the Authority: 5 U.S.C. 301; 22 U.S.C. 2658. shall submit a written request, with International Circulation of Visual and § 21.1. Policy. appropriate documentation including Auditory Materials of an Educational, Scientific and Cultural Character, of (a) The Department of State may copies of the verdict, judgment, award, 1948, by permitting the issuance of indemnify an employee for any verdict, or settlement proposal if on appeal, to serial certifications in certain judgment, or other monetary award the Legal Adviser. Except as provided in circumstances. The amendment which is rendered against such paragraph (g) of this section, the Legal reinstates into the regulations a employee, provided that the conduct Adviser and the Director General shall provision omitted in a previous revision giving rise to the verdict, judgment, or then, in coordination with the Bureau of of the regulations, and allows for award was taken within the scope of Finance and Management Policy, certification of time sensitive materials employment and that such forward the request with their in serial format, thus facilitating the free indemnification is in the interest of the recommendation to the Under Secretary flow of eligible materials. United States, as determined as a matter for Management for decision. The Legal of discretion by the Under Secretary for Adviser may seek the views of the EFFECTIVE DATE: June 7, 1995. Management or his or her designee. Department of Justice, as appropriate, in FOR FURTHER INFORMATION CONTACT: (b) The Department of State may settle preparing this recommendation. Neila Sheahan, Assistant General or compromise a personal damages (g) Cases in which the Director Counsel, Office of the General Counsel, claim against an employee by the General is the designee under paragraph Room 700, United States Information payment of available funds at any time, (c) of this section may be forwarded by Agency, 301 4th Street SW., provided the alleged conduct giving rise the Assistant Legal Adviser for Special Washington, DC 20547, (202) 619–5030. to the personal damages claim was Functional Problems, along with the SUPPLEMENTARY INFORMATION: The taken within the scope of employment views of the employee and the bureau United States Information Agency and that such settlement or compromise or post as appropriate, to the Director implements and administers the is in the interest of the United States, as General for decision. Agreement for Facilitating the determined as a matter of discretion by (h) Personal services contractors of International Circulation of Visual and the Under Secretary for Management or the Department are considered Auditory Materials of an Educational, his or her designee. employees for purposes of the policy set Scientific and Cultural Character (c) The Director General of the forth in this part. (‘‘Beirut Agreement’’), enacted by the Foreign Service and Director of (i) Any payment under this part either Third General Session of the United Personnel (‘‘Director General’’) shall be to indemnify a Department of State Nations Educational, Cultural and the designee of the Under Secretary for employee or to settle a personal Scientific Organization (UNESCO), in Management with respect to damages claim shall be contingent upon Beirut, Lebanon in 1948, 17 U.S.T. 1578. determinations under paragraphs (a) the availability of appropriated funds. In order to reconcile the terms of the and (b) of this section in cases which (j) In addition to the indemnification Beirut Agreement with recent judicial involve: provisions contained in the regulations decisions and statutory requirements, (1) Foreign courts or foreign in this part, the Department will also the Agency published revisions to the administrative bodies and follow any specific policies or regulations covering implementation of (2) Requests of less than five thousand regulations adopted with respect to the Agreement, at 59 FR 18963 on April dollars. damages awarded against Department 21, 1994. Those regulations made (d) Absent exceptional circumstances health care personnel for malpractice changes in the substantive criteria by as determined by the Under Secretary claims within the scope of 22 U.S.C. which the Agency evaluates the for Management or his or her designee, 2702. character of audio visual material for the Department will not entertain a Dated: May 5, 1995. certification, and renumbered the request either to agree to indemnify or Richard M. Moose, regulations. The regulations, however, to settle a personal damages claim Under Secretary for Management. omitted the provision for serial before entry of an adverse verdict, [FR Doc. 95–13838 Filed 6–6–95; 8:45 am] certifications, a practice followed judgment, or award. BILLING CODE 4710±08±M informally from 1963 and formally (e) When an employee in the United incorporated into Agency regulations in States becomes aware that an action has 1984, at 22 CFR 502.6(b)(6). The been filed against the employee in his UNITED STATES INFORMATION provision for serial certifications was or her personal capacity as a result of AGENCY not challenged by judicial decisions; nor conduct taken within the scope of his or was its alteration or elimination her employment, the employee shall 22 CFR Part 502 required by statute. immediately notify the Department On April 18, 1995 the Agency through the Executive Director of the [Rulemaking No. 202] published in 60 FR 19385 a proposed Office of the Legal Adviser that such an Educational, Scientific, and Cultural rule to reinstate the provision for serial action is pending. Employees overseas Material; World-Wide Free Flow certification. It allows for the shall notify their Administrative (Export-Import) of Audio-Visual certification of otherwise eligible Counselor who shall then notify the Materials materials that (1) are produced in series Assistant Legal Adviser for Special form (e.g. weekly, bi-weekly, monthly), Functional Problems. Employees may be AGENCY: United States Information (2) are extremely time sensitive; and authorized to receive legal Agency. therefore the normal processing of Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29989 certification decisions thereon would § 502.3 Certification and authentication EFFECTIVE DATE: This rule is effective result in unreasonable delays and criteria. June 7, 1995. monetary loss to the producer, and (3) * * * * * FOR FURTHER INFORMATION CONTACT: samples are provided and the (d) The Agency may certify or Mary Ann Hadyka or Nancy Allard at educational character of the future authenticate materials which have not 301–713–6730. programs can be generally described been produced at the time of application SUPPLEMENTARY INFORMATION: NARA before certification and can be verified upon an affirmative determination that: published a notice of proposed (1) The materials will be issued by a post-certification review of the rulemaking on May 31, 1994 (59 FR serially, items or through descriptive material 28033) for a 60-day comment period. (2) Representative samples of the such as a script of the narration. The The proposed rule expanded the vital serial material have been provided at Agency received one comment on the records program to incorporate proposed amendment to the existing the time of application, (3) Future titles and release dates have contingency planning and records regulations, which agreed that the disaster mitigation and recovery. amendment was necessary to facilitate been provided to the Agency at the time of application, Twenty written comments were the free flow of eligible information to received. It was clear that the extension interested audiences. (4) The applicant has affirmed that: (i) Future released materials in the of the regulation on vital records to a Regulatory Analysis and Notices series will conform to the substantive broader context was perceived by the criteria for certification delineated at agencies to be confusing, redundant, In accordance with 5 U.S.C. 605(5), and burdensome. Consequently, NARA the Agency certifies that this rule does paragraphs (a) through (c) of this section; has revised the regulation to limit its not have a significant adverse economic application to vital records impact on a substantial number of small (ii) Such materials will be similar to the representative samples provided to responsibilities, in the context of the entities. This rule is not considered to larger emergency management program. be a major rule within the meaning of the Agency on application; and (iii) The applicant will provide the Additional information will be provided section 1(b) of Executive Order 12291, Agency with copies of the items in a forthcoming NARA management nor does this rule have Federalism themselves or descriptive materials for guide. The guide will provide more implications warranting the preparation post-certification review. detail on vital records program of a Federalism Assessment in (e) If the Agency determines through planning, identifying vital records, accordance with Executive Order 12612. a post-certification review that the training agency staff, and assessing No additional burden under the materials do not comply with the records damaged in an emergency or Paperwork Reduction Act, 44 U.S.C. substantive criteria for certification disaster to determine what steps, if any, Chapter 35, will result from the delineated at paragraphs (a) through (c) should be taken to recover the promulgation of this rule. of this section, the applicant will no information in them. Its provisions will List of Subjects in 22 CFR Part 502 longer be eligible for serial be advisory, rather than mandatory. Audiovisual material, Education, certifications. Ineligibility for serial Following is a section-by-section Exports, Imports, Trade Agreement. certifications will not affect an discussion of the major issues raised in the written comments. For the reasons set out in the applicant’s eligibility for certification of materials reviewed prior to production. preamble, 22 CFR part 502 is amended Section-by-Section Analysis as follows: Dated: June 1, 1995. Les Jin, Section 1236.10 Purpose PART 502ÐWORLD-WIDE FREE FLOW General Counsel. One agency thought that vital records OF AUDIO-VISUAL MATERIALS [FR Doc. 95–13959 Filed 6–6–95; 8:45 am] should be presented as part of the disaster recovery program, rather than 1. The authority citation for part 502 BILLING CODE 8230±01±M the reverse. Another agency continues to read as follows: recommended that the rule clarify the Authority: 5 U.S.C. 301, 19 U.S.C. 2051, 22 relationship between contingency U.S.C. 1431 et seq; Pub. L. 102–138, E.O. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION planning, vital records, and records 11311, 31 FR 13413, 3 CFR 1966–1970 disaster mitigation and recovery. This comp., page 593. 36 CFR Part 1236 section has been modified to reflect the 2. Section 502.2 is amended by revised scope of the regulation. adding, in alphabetical order, a RIN 3095±AA51 definition for ‘‘serial certification’’ to Section 1236.12 Authority Management of Vital Records read as follows: NARA reconsidered the authorities AGENCY: National Archives and Records cited for this regulation and deleted 44 § 502.2 Definitions. Administration. U.S.C. 3105 because that section of the * * * * * ACTION: Final rule. law relates to unauthorized disposal. It Serial certification—means supports the records disposition certification by the Agency of materials SUMMARY: This regulation revises NARA regulations at 36 CFR 1228 and has no produced in series form and which, for regulations on Federal agencies’ direct relationship to regulations on time-sensitive reasons, cannot be management of vital records in order to vital records. reviewed prior to production; but place the vital records program in the samples are provided on application, context of agency emergency Section 1236.14 Definitions and the materials are subject to post- management responsibilities. The vital One agency noted that the definition certification review. records program is intended to ensure of contingency planning actually * * * * * continuity of agency operations and described risk analysis. Another agency 3. Section 502.3 is amended by protect rights of citizens and the recommended that the definition of adding new paragraphs (d) and (e) to Government. The regulation affects all emergency operating records be read as follows: Federal agencies. modified to clearly cover records 29990 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations needed to operate during and after an General Records Schedules. NARA each series or for records in each emergency in addition to records declines to accept this suggestion medium. NARA reconsidered the containing procedures for operating because many vital records common to propriety of including this level of during an emergency. That agency also many agencies are permanent and detail about the broader emergency suggested that the definition of records therefore not in the General Records management program in its regulations disaster mitigation and recovery was too Schedules (GRS). Many other vital on vital records and deleted the entire broad and recommended that it be records are unique to individual section. NARA concluded that the clearly limited to emergency situations. agencies. As vital records are identified proposed regulation was confusing to The definitions of contingency planning in the course of contingency planning, agencies, duplicative of requirements and emergency operating records have NARA believes it inappropriate to imposed by FEMA on emergency been revised. In response to a third mandate that specific series in the GRS management and by GSA on computer agency recommendation, the definition be treated as vital records. security, and unnecessarily of off-site was added. NARA changed One agency recommended that this burdensome. rights-and-interests records to legal and section more clearly address electronic The Administrative Procedures Act (5 financial rights records because the records and security backup copies. In U.S.C. 553(d)) provides that the effective latter term is more precise. The particular, the agency asked if electronic date of a final rule may be less than 30 definitions of emergency coordinator, records could be regarded as the vital days after publication in the Federal hazard, and vital records manager, were record copy, even if it is not an exact Register when the rule relieves a deleted because they are not used in the duplicate. In § 1236.22, NARA modified restriction. This rule will allow agencies revised regulation. the regulation to clarify that it is the to store their emergency operating vital informational content, not the form, of Sections 1236.20 through 1236.24 records in the Federal Records Centers. the records that must be considered. Previously, only legal and financial These sections, originally proposed to Also, § 1236.26 indicates that copies of rights vital records could be transferred cover contingency planning, have been electronic records created for security to a records center. Accordingly, we are deleted. Contingency planning for purposes are adequate for protecting making this final rule effective emergencies is adequately covered in vital information, even if the copies immediately. FEMA issuances such as the ‘‘Federal include records not containing vital This rule is not a significant Response Planning Guide, Continuity of information. Additional guidance on regulatory action for purposes of Operations (COOP) Planning Guidance electronic records will be provided in Executive Order 12866 of September 30, (FRPG 01–94).’’ the forthcoming guide. 1993, and has not been reviewed under Two agencies raised questions about Section 1236.30 Vital Records Program the Order by the Office of Management copies of vital records, and one and Budget. As required by the Six agencies questioned one or more recommended a risk analysis to Regulatory Flexibility Act, it is hereby of the elements of the vital records determine whether duplication is certified that this rule will not have a program described in this section, necessary. Section 1236.24 clarifies that significant impact on small entities. including issuance of a separate agencies determine when copies are directive for the program, establishing a needed. List of Subjects in 36 CFR 1236 separate position for the vital records Several agencies questioned the Archives and records. manager, providing training, and restriction on use of Federal Records For the reasons set forth in the conducting annual reviews. NARA did Centers (FRC’s) to copies of legal and preamble, 36 CFR chapter XII is not intend this section to require financial rights records. We have amended by revising part 1236 to read separate directives, full-time positions, modified the rule at § 1236.26(c) to as follows: elaborate training, or burdensome allow agencies to store emergency reviews. Management of vital records operating records at FRC’s under certain PART 1236ÐMANAGEMENT OF VITAL should be the responsibility of the conditions. RECORDS agency records manager. It is one of One agency pointed out that not all many records management functions vital record copies are cycled, and two Subpart AÐGeneral that should be addressed in agency agencies stated that the disposition of Sec. records management directives, the copies may not be the same as the 1236.10 Purpose. training, and program reviews. This originals. This rule was clarified on 1236.12 Authority. section was modified to include only these points. 1236.14 Definitions. the basic requirements relating Subpart BÐVital Records Sections 1236.40 and 1236.42 Records specifically to vital records. Disaster Mitigation and Recovery 1236.20 Vital records program objectives. 1236.22 Identification of vital records. Section 1236.32 Identifying, Using and Program 1236.24 Use of vital records and copies of Protecting Vital Records Three agencies found § 1236.40, vital records. This section has been divided into Records protection, confusing in 1236.26 Protection of vital records. three sections, now designated relation to the scope of the records 1236.28 Disposition of original vital § 1236.22, § 1236.24, and § 1236.26. One protection plan. Three agencies raised records. agency recommended that the inventory questions about the scope of § 1236.42, Authority: 44 U.S.C. 2104(a), 2904(a), of vital records be integrated into the Elements of a records disaster mitigation 3101; E. O. 12656, 53 FR 47491, 3 CFR, 1988 Comp., p. 585. records scheduling process. NARA did and recovery program. One not intend that this inventory recommended that the program be Subpart AÐGeneral necessarily duplicate inventorying for integrated with information security scheduling. Section 1236.22 clarifies plans and contingency of operations § 1236.10 Purpose. that point, and further explanation will plans. Another objected to the This part prescribes policies and be provided in the forthcoming guide. requirement that agencies test records procedures for establishing a program Another agency suggested that common recovery programs for all offices. The for the identification and protection of vital records be so designated in the third asked if a plan was required for vital records, those records needed by Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29991 agencies for continuity of operations Emergency operating records are that Subpart BÐVital Records before, during, and after emergencies, type of vital records essential to the and those records needed to protect the continued functioning or reconstitution § 1236.20 Vital records program objectives. legal and financial rights of the of an organization during and after an The vital records program is Government and persons affected by emergency. Included are emergency conducted to identify and protect those Government activities. The records may plans and directive(s), orders of be maintained on a variety of media records that specify how an agency will succession, delegations of authority, operate in case of emergency or disaster, including paper, magnetic tape or disk, staffing assignments, selected program photographic film, and microfilm. The those records vital to the continued records needed to continue the most operations of the agency during and management of vital records is part of critical agency operations, as well as an agency’s continuity of operations after an emergency or disaster, and related policy or procedural records that records needed to protect the legal and plan designed to meet emergency assist agency staff in conducting management responsibilities. financial rights of the Government and operations under emergency conditions of the persons affected by its actions. An § 1236.12 Authority. and for resuming normal operations agency identifies vital records in the Heads of agencies are responsible for after an emergency. course of contingency planning the vital records program under the Legal and financial rights records are activities carried out in the context of following authorities: that type of vital records essential to the emergency management function. In (a) To make and preserve records protect the legal and financial rights of carrying out the vital records program agencies shall: containing adequate and proper the Government and of the individuals (a) Specify agency staff documentation of the agency’s directly affected by its activities. organization, functions, policies, responsibilities; Examples include accounts receivable (b) Ensure that all concerned staff are procedures, decisions, and essential records, social security records, payroll transactions, and to furnish information appropriately informed about vital records, retirement records, and to protect the legal and financial rights records; insurance records. These records were of the Government and of persons (c) Ensure that the designation of vital formerly defined as ‘‘rights-and- directly affected by the agency’s records is current and complete; and (d) Ensure that vital records and activities (44 U.S.C. 3101). interests’’ records. copies of vital records are adequately (b) To perform national security National security emergency means protected, accessible, and immediately emergency preparedness functions and any occurrence, including natural usable. activities (Executive Order 12656). disaster, military attack, technological emergency, or other emergency, that § 1236.22 Identification of vital records. § 1236.14 Definitions. seriously degrades or threatens the Vital records include emergency plans Basic records management terms are national security of the United States, as and related records that specify how an defined in 36 CFR 1220.14. As used in defined in Executive Order 12656. agency is to respond to an emergency as part 1236: well as those records that would be Contingency planning means Off-site storage means a facility other needed to continue operations and instituting policies and procedures to than an agency’s normal place of protect legal and financial rights. mitigate the effects of potential business where vital records are stored Agencies should consider the emergencies or disasters on an agency’s for protection. This is to ensure that the informational content of records series operations and records. Contingency vital records are not subject to damage and electronic records systems when planning is part of the continuity of or destruction from an emergency or identifying vital records. Only the most operations planning required under disaster affecting an agency’s normal recent and complete source of the vital Federal Preparedness Circulars and place of business. information needs to be treated as vital other guidance issued by the Federal Vital records mean essential agency records. Emergency Management Agency records that are needed to meet (FEMA) and Executive Order 12656. operational responsibilities under § 1236.24 Use of vital records and copies Cycle means the periodic removal of of vital records. obsolete copies of vital records and their national security emergencies or other emergency or disaster conditions Agencies shall ensure that retrieval replacement with copies of current vital procedures for vital records require only (emergency operating records) or to records. This may occur daily, weekly, routine effort to locate needed protect the legal and financial rights of quarterly, annually or at other information, especially since the Government and those affected by designated intervals. individuals unfamiliar with the records Disaster means an unexpected Government activities (legal and may need to use them during an occurrence inflicting widespread financial rights records). emergency or disaster. Agencies also destruction and distress and having Vital records program means the shall ensure that all equipment needed long-term adverse effects on agency policies, plans, and procedures to read vital records or copies of vital operations. Each agency defines what a developed and implemented and the records will be available in case of long-term adverse effect is in relation to resources needed to identify, use, and emergency or disaster. For electronic its most critical program activities. protect the essential records needed to records systems, agencies also shall Emergency means a situation or an meet operational responsibilities under ensure that system documentation occurrence of a serious nature, national security emergencies or other adequate to operate the system and developing suddenly and unexpectedly, emergency or disaster conditions or to access the records will be available in and demanding immediate action. This case of emergency or disaster. is generally of short duration, for protect the Government’s rights or those example, an interruption of normal of its citizens. This is a program element § 1236.26 Protection of vital records. agency operations for a week or less. It of an agency’s emergency management Agencies shall take appropriate may involve electrical failure or minor function. measures to ensure the survival of the flooding caused by broken pipes. vital records or copies of vital records in 29992 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations case of emergency or disaster. In the agency must contact the FRC to premanufacture notice (PMN) P–93– case of electronic records, this determine if the center can 1119. EPA initially published this requirement is met if the information accommodate the storage requirements SNUR using direct final rulemaking needed in the event of emergency or and return copies in an acceptable procedures. EPA received adverse disaster is available in a copy made for period of time. comments on this rule. Therefore, the general security purposes, even when (2) The off-site copy of legal and Agency is revoking this rule, as required the copy contains other information. financial rights vital records may be under the expedited SNUR rulemaking (a) Duplication. Computer backup stored at an off-site agency location or, process. In a separate notice of proposed tapes created in the normal course of in accordance with § 1228.156 of this rulemaking in today’s issue of the system maintenance or other electronic chapter, at an FRC. Federal Register, EPA is proposing a copies that may be routinely created in (3) When using an FRC for storing SNUR for this substance with a 30–day the normal course of business may be vital records that are duplicate copies of comment period. used as the vital record copy. For hard original records, the agency must copy records, agencies may choose to specify on the SF 135, Records EFFECTIVE DATE: This action is effective make microform copies. Standards for Transmittal and Receipt, that they are on June 7, 1995. the creation, preservation and use of vital records (duplicate copies) and the FOR FURTHER INFORMATION CONTACT: microforms are found in 36 CFR part medium on which they are maintained. Susan B. Hazen, Director, 1230, Micrographic Records The agency shall also periodically cycle Environmental Assistance Division Management. The Computer Security (update) them by removing obsolete (7408), Office of Pollution Prevention Act of 1987 (40 U.S.C. 759, Pub. L. 100– items and replacing them with the most and Toxics, Environmental Protection 235), OMB Circular A–130, and 36 CFR recent version, when necessary. part 1234, Electronic Records (4) Agencies that transfer permanent, Agency, Rm. E–543B, 401 M St., SW., Management, and 41 CFR part 201, original vital records maintained on Washington, DC 20460, Telephone: subchapter B, Management and Use of electronic or microform media to the (202) 554–1404, TDD: (202) 554–0551. Information and Records, specify custody of the National Archives may SUPPLEMENTARY INFORMATION: In the protective measures and standards for designate such records as their off-site Federal Register of May 27, 1994 (59 FR electronic records. copy. That designation may remain in 27474), EPA issued several direct final (b) Storage. When agencies choose effect until the information in such SNURs including a SNUR for the duplication as a protection method, the transferred records is superseded or substance described generically as copy of the vital record stored off-site is becomes obsolete. organotin lithium compound, PMN P– normally a duplicate of the original record. Designating and using duplicate § 1236.28 Disposition of original vital 93–1119. As described in 40 CFR copies of original records as vital records. 721.160, EPA is revoking the rule issued records facilitates destruction or The disposition of original vital for P–93–1119 under direct final deletion of obsolete duplicates when records is governed by records rulemaking procedures because the replaced by updated copies, whereas schedules approved by NARA (see part Agency received adverse comments. original vital records must be retained 1228, Disposition of Federal Records). Pursuant to § 721.160(c)(3)(ii), EPA is for the period specified in the agency Original records that are not scheduled proposing a revised SNUR for this records disposition schedule. The may not be destroyed or deleted. chemical substance elsewhere in today’s agency may store the original records Dated: May 30, 1995. issue of the Federal Register. For details regarding EPA’s expedited process for off-site if protection of original Trudy Huskamp Peterson, signatures is necessary, or if it does not issuing SNURs, interested parties are Acting Archivist of the United States. need to keep the original record at its directed to 40 CFR part 721, subpart D. normal place of business. [FR Doc. 95–13951 Filed 6–6–95; 8:45 am] The record for the direct final SNUR (c) Storage considerations. Agencies BILLING CODE 7515±01±P which is being revoked was established need to consider several factors when at OPPTS–50615. That record includes deciding where to store copies of vital information considered by the Agency records. Copies of emergency operating ENVIRONMENTAL PROTECTION in developing the rule and includes the vital records need to be accessible in a AGENCY adverse comments to which the Agency very short period of time for use in the 40 CFR Part 721 is responding with this notice of event of an emergency or disaster. revocation. The docket control number Copies of legal and financial rights [OPPTS±50615A; FRL±4916±3] for the revocation is OPPTS–50615A. records may not be needed as quickly. RIN 2070±AB27 For more information, refer to the In deciding where to store vital records proposal published elsewhere in today’s copies, agencies shall treat records that Organotin Lithium Compound; issue of the Federal Register. The have the properties of both categories, Revocation of Significant New Use relevant portions of the original docket that is, emergency operating and legal Rule for the direct final SNUR are being and financial rights records, as incorporated under OPPTS–50615B, emergency operating records. AGENCY: Environmental Protection which is established for the proposed (1) Under certain circumstances, Agency (EPA). rule. Federal records centers (FRC’s) may ACTION: Revocation of final rule. store copies of emergency operating A public version of the record without vital records. FRC’s will store small SUMMARY: EPA is revoking a significant any confidential business information is volumes of such records, but may not be new use rule (SNUR) promulgated available in the TSCA Nonconfidential able to provide storage for large under section 5(a)(2) of the Toxic Information Center (NCIC) from 12 noon collections or ones requiring constant Substances Control Act (TSCA) for the to 4 p.m., Monday through Friday, recycling of the vital records, except chemical substance described except legal holidays. The TSCA NCIC under reimbursable agreement. Prior to generically as an organotin lithium is located in Rm. NE–B607, 401 M St., preparing the records for shipment, the compound which was the subject of SW., Washington, DC 20460. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29993 List of Subjects in 40 CFR Part 721 SUPPLEMENTARY INFORMATION: The National Environmental Policy Act Federal Emergency Management Agency Environmental protection, Chemicals, This rule is categorically excluded Hazardous materials, Reporting and makes the final determinations listed below of the final determinations of from the requirements of 44 CFR Part recordkeeping requirements, Significant 10, Environmental Consideration. No new uses. modified base (100-year) flood elevations for each community listed. environmental impact assessment has Dated: May 19, 1995. These modified elevations have been been prepared. Charles M. Auer, published in newspapers of local Regulatory Flexibility Act Director, Chemical Control Division, Office circulation and ninety (90) days have of Pollution Prevention and Toxics. elapsed since that publication. The The Associate Director, Mitigation Therefore, 40 CFR part 721 is Associate Director has resolved any Directorate, certifies that this rule is amended as follows: appeals resulting from this notification. exempt from the requirements of the The modified base (100-year) flood Regulatory Flexibility Act because PART 721Ð[AMENDED] elevations are not listed for each modified base (100-year) flood community in this notice. However, this elevations are required by the Flood 1. The authority citation for part 721 rule includes the address of the Chief Disaster Protection Act of 1973, 42 continues to read as follows: Executive Officer of the community U.S.C. 4105, and are required to Authority: 15 U.S.C. 2604, 2607, and where the modified base (100-year) maintain community eligibility in the flood elevation determinations are 2625(c). NFIP. No regulatory flexibility analysis available for inspection. has been prepared. § 721.9668 [Removed] The modifications are made pursuant to Section 206 of the Flood Disaster Regulatory Classification 2. By removing § 721.9668. Protection Act of 1973, 42 U.S.C. 4105, [FR Doc. 95–13963 Filed 6–6–95; 8:45 am] and are in accordance with the National This final rule is not a significant BILLING CODE 6560±50±F Flood Insurance Act of 1968, 42 U.S.C. regulatory action under the criteria of 4001 et seq., and with 44 CFR Part 65. Section 3(f) of Executive Order 12866 of For rating purposes, the currently September 30, 1993, Regulatory effective community number is shown Planning and Review, 58 FR 51735. FEDERAL EMERGENCY and must be used for all new policies Executive Order 12612, Federalism MANAGEMENT AGENCY and renewals. The modified base (100-year) flood 44 CFR Part 65 This rule involves no policies that elevations are the basis for the have federalism implications under Changes in Flood Elevation floodplain management measures that Executive Order 12612, Federalism, Determinations the community is required to either dated October 26, 1987. adopt or to show evidence of being AGENCY: Federal Emergency already in effect in order to qualify or Executive Order 12778, Civil Justice Management Agency (FEMA). to remain qualified for participation in Reform the National Flood Insurance Program ACTION: Final rule. This rule meets the applicable (NFIP). standards of Section 2(b)(2) of Executive SUMMARY: Modified base (100-year) These modified elevations, together flood elevations are finalized for the with the floodplain management criteria Order 12778. communities listed below. These required by 44 CFR 60.3, are the List of Subjects in 44 CFR Part 65 modified elevations will be used to minimum that are required. They calculate flood insurance premium rates should not be construed to mean that Flood insurance, Floodplains, for new buildings and their contents. the community must change any Reporting and recordkeeping EFFECTIVE DATES: The effective dates for existing ordinances that are more requirements. stringent in their floodplain these modified base (100-year) flood Accordingly, 44 CFR part 65 is management requirements. The elevations are indicated on the amended to read as follows: following table and revise the Flood community may at any time enact Insurance Rate Map(s) in effect for each stricter requirements of its own, or PART 65Ð[AMENDED] listed community prior to this date. pursuant to policies established by other Federal, State, or regional entities. ADDRESSES: The modified base flood 1. The authority citation for part 65 These modified elevations are used to continues to read as follows: elevations for each community are meet the floodplain management available for inspection at the office of requirements of the NFIP and are also Authority: 42 U.S.C. 4001 et seq.; the Chief Executive Officer of each used to calculate the appropriate flood Reorganization Plan No. 3 of 1978, 3 CFR, community. The respective addresses insurance premium rates for new 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, are listed in the following table. buildings built after these elevations are 3 CFR, 1979 Comp., p. 376. FOR FURTHER INFORMATION CONTACT: made final, and for the contents in these § 65.4 [Amended] Michael K. Buckley, P.E., Chief, Hazard buildings. Identification Branch, Mitigation The changes in base (100-year) flood 2. The tables published under the Directorate, 500 C Street, SW, elevations are in accordance with 44 authority of § 65.4 are amended as Washington, DC 20472, (202) 646–2756. CFR 65.4. follows: 29994 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations Dates and name of State and county Location newspaper where no- Chief executive officer of community Effective date of Commu- tice was published modification nity No. California: Orange City of Brea ...... December 1, 1994, De- The Honorable Glenn Parker, Mayor, November 8, 1994 ...... 060214 (FEMA Docket cember 8, 1994, City of Brea, No. 1 Civic Center No. 7125). Brea Progress. Circle, Brea, California 92621. California: Riverside City of Corona .. December 1, 1994, De- The Honorable Bill Miller, Mayor, City November 9, 1994 ...... 060250 (FEMA Docket cember 8, 1994, of Corona, 815 West Sixth Street, No. 7125). Press Enterprise. Corona, California 91720. California: Solano City of Fairfield . January 4, 1995, Janu- The Honorable Chuck Hammond, December 5, 1994 ...... 060370 (FEMA Docket ary 11, 1995, Daily Mayor, City of Fairfield, 1000 Web- No. 7131). Republic. ster Street, Fairfield, California 94533±4883. California: Sac- City of Folsom .. January 4, 1995, Janu- The Honorable Bob Holderness, November 18, 1994 ..... 060263 ramento (FEMA ary 11, 1995, Folsom Mayor, City of Folsom, 50 Natoma Docket No. 7131). Telegraph. Street, Folsom, California 95630. California: Los An- Unincorporated December 23, 1994, The Honorable Yvonne Burke, Chair- November 18, 1994 ..... 065043 geles (FEMA areas. December 30, 1994, person, Los Angeles County, Docket No. 7125). Daily Commerce. Board of Supervisors, 500 West Temple Street, Los Angeles, Cali- fornia 90012. California: Riverside City of Norco ..... December 1, 1994, De- The Honorable Bill Vaughn, Mayor, November 9, 1994 ...... 060256 (FEMA Docket cember 8, 1994, City of Norco, P.O. Box 428, No. 7125). Press Enterprise. Norco, California 91760. California: Shasta Unincorporated November 17, 1994, The Honorable Francie Sullivan, October 28, 1994 ...... 060358 (FEMA Docket areas. November 24, 1994, Chairperson, Shasta County, No. 7121). Record-Searchlight. Board of Supervisors, 1815 Yuba Street, Redding, California 96001. California: Solano Unincorporated January 4, 1995, Janu- The Honorable William Carroll, Chair- December 5, 1994 ...... 060631 (FEMA Docket areas. ary 11, 1995, Daily man, Solano County, Board of Su- No. 7131). Republic. pervisors, 580 Texas Street, Fair- field, California 94533±6378. Colorado: Douglas Town of Castle December 14, 1994, The Honorable Mark Williams, November 21, 1994 ..... 080050 (FEMA Docket Rock. December 21, 1994, Mayor, Town of Castle Rock, 680 No. 7125). Douglas County North Wilcox Street, Castle Rock, News Press. Colorado 80104. Colorado: Douglas Unincorporated December 21, 1994, The Honorable M. Michael Cooke, November 18, 1994 ..... 080049 (FEMA Docket areas. December 28, 1994, Chairperson, Douglas County, No. 7125). Douglas County Board of Commissioners, 101 News. Third Street, Castle Rock, Colo- rado 80104. Colorado: Weld City of Greeley .. December 21, 1994, The Honorable Willie Morton, Mayor, November 23, 1994 ..... 080184 (FEMA Docket December 28, 1994, City of Greeley, City Hall, 1000 No. 7125). Greeley Daily Trib- Tenth Street, Greeley, Colorado une. 80631. Colorado: La Plata Unincorporated January 6, 1995, Janu- The Honorable Frank Joswick, Chair- November 29, 1994 ..... 080097 (FEMA Docket areas. ary 13, 1995, Du- person, La Plata County, Board of No. 7131). rango Herald. Commissioners, 1060 East Second Avenue, Durango, Colorado 81301. Colorado: Douglas Town of Lark- December 21, 1994, The Honorable Florence Burnch, November 18, 1994 ..... 080309 (FEMA Docket spur. December 28, 1994, Mayor, Town of Larkspur, P.O. No. 7125). Douglas County Box 310, Larkspur, Colorado News Press. 80118. Colorado: Weld Unincorporated December 21, 1994, The Honorable W.H. Webster, Chair- November 23, 1994 ..... 080266 (FEMA Docket areas. December 28, 1994, person, Weld County, Board of No. 7125). Greeley Daily Trib- Commissioners, P.O. Box 758, une. Greeley, Colorado 80632. Kansas: Johnson City of Overland December 21, 1994, The Honorable Ed Eilert, Mayor, City December 5, 1994 ...... 200174 (FEMA Docket Park. December 28, 1994, of Overland Park, City Hall, 8500 No. 7125). Johnson County Sun. Santa Fe Drive, Overland Park, Kansas 66212. New Mexico: City of Albuquer- November 18, 1984, The Honorable Martin Chavez, October 27, 1994 ...... 350002 Bernalillo (FEMA que. November 25, 1994, Mayor, City of Albuquerque, P.O. Docket No. 7121). Albuquerque Tribune. Box 1293, Albuquerque, New Mex- ico 87103. New Mexico: City of Albuquer- December 23, 1994, The Honorable Martin Chavez, November 15, 1994 ..... 350002 Bernalillo (FEMA que. December 30, 1994, Mayor, City of Albuquerque, P.O. Docket No. 7125). Albuquerque Tribune. Box 1293, Albuquerque, New Mex- ico 87103. Oklahoma: Cleve- City of Norman . November 16, 1994, The Honorable Bill Nations, Mayor, November 2, 1994 ...... 400046 land (FEMA November 23, 1994, City of Norman, 201 West Gray Docket No. 7121). Norman Transcript. Street, Building A, Norman, Okla- homa 73069. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29995 Dates and name of State and county Location newspaper where no- Chief executive officer of community Effective date of Commu- tice was published modification nity No. Oklahoma: Okla- City of Okla- November 16, 1994, The Honorable Ronald J. Norick, October 28, 1994 ...... 405378 homa (FEMA homa City. November 23, 1994, Mayor, City of Oklahoma City, 200 Docket No. 7121). Journal Record. North Walker Avenue, Oklahoma City, Oklahoma 73102. Texas: Tarrant City of Arlington December 15, 1994, The Honorable Richard Greene, November 30, 1994 ..... 485454 County (FEMA December 22, 1994, Mayor, City of Arlington, P.O. Box Docket No. 7125). Fort Worth Star Tele- 231, Arlington, Texas 76004±0231. gram. Texas: Dallas City of Carrollton November 17, 1994, The Honorable Milburn Gravely, October 31, 1994 ...... 480167 (FEMA Docket November 24, 1994, Mayor, City of Carrollton, P.O. Box No. 7121). Metrocrest News. 110535, Carrollton, Texas 75011± 0535. Texas: Dallas City of Carrollton January 5, 1995, Janu- The Honorable Milburn Gravely, December 13, 1994 ..... 480167 (FEMA Docket ary 12, 1995, Mayor, City of Carrollton, P.O. Box No. 7131). Metrocrest News. 110535, Carrollton, Texas 75011± 0535. Texas: Tarrant City of January 4, 1995, Janu- The Honorable Cheryl Seigel, Mayor, December 13, 1994 ..... 480590 (FEMA Docket Colleyville. ary 11, 1995, Fort City of Colleyville, P.O. Box 165, No. 7131). Worth Star Telegram. Colleyville, Texas 76034. Texas: Collin Unincorporated November 17, 1994, The Honorable Ron Harris, County October 31, 1994 ...... 480130 (FEMA Docket areas. November 24, 1994, Judge, Collin County, 210 South No. 7121). Courier Gazette. McDonald Street, McKinney, Texas 75069. Texas: El Paso City of El Paso .. January 3, 1995, Janu- The Honorable William S. Tilney, December 12, 1994 ..... 480214 (FEMA Docket ary 10, 1995, El Mayor, City of El Paso, Two Civic No. 7131). Paso Times. Center Plaza, El Paso, Texas 79901. Texas: Dallas City of Grand December 15, 1994, The Honorable Charles England, November 30, 1994 ..... 485472 (FEMA Docket Prairie. December 22, 1994, Mayor, City of Grand Prairie, 317 No. 7125). Grand Prairie Daily College Street, Grand Prairie, News. Texas 75053. Texas: Tarrant City of Grape- January 4, 1995, Janu- The Honorable William D. Tate, December 13, 1994 ..... 480598 (FEMA Docket vine. ary 11, 1995, Fort Mayor, City of Grapvine, 413 No. 7131). Worth Star Telegram. South Main Street, Grapevine, Texas 76051. Texas: Harris Unincorporated December 9, 1994, De- The Honorable Jon Lindsay, Harris November 30, 1994 ..... 480287 (FEMA Docket areas. cember 16, 1994, County Judge, 1001 Preston, Suite No. 7125). The Houston Post. 911, Houston, Texas 77002. Texas: Collin City of McKinney November 17, 1994, The Honorable John Gay, Mayor, October 31, 1994 ...... 480135 (FEMA Docket November 24, 1994, City of McKinney, P.O. Box 517, No. 7121). Courier Gazette. McKinney, Texas 75069. Texas: Collin City of Plano ..... January 4, 1995, Janu- The Honorable James N. Muns, November 29, 1994 ..... 480140 (FEMA Docket ary 11, 1995, Dallas Mayor, City of Plano, P.O. Box No. 7131). Morning News. 860358, Plano, Texas 75086±0358. (Catalog of Federal Domestic Assistance No. technical data. New flood insurance community are available for inspection 83.100, ‘‘Flood Insurance.’’) premium rates will be calculated from at the office of the Chief Executive Dated: May 31, 1995. the modified base (100-year) flood Officer of each community. The Frank H. Thomas, elevations for new buildings and their respective addresses are listed in the Deputy Associate Director for Mitigation. contents. following table. [FR Doc. 95–13908 Filed 6–6–95; 8:45 am] DATES: These modified base flood FOR FURTHER INFORMATION CONTACT: BILLING CODE 6718±03±P elevations are currently in effect on the Michael K. Buckley, P.E., Chief, Hazard dates listed in the table and revise the Identification Branch, Mitigation Flood Insurance Rate Map(s) in effect 44 CFR Part 65 Directorate, 500 C Street, SW, prior to this determination for each Washington, DC 20472, (202) 646–2756. [Docket No. FEMA±7143] listed community. From the date of the second SUPPLEMENTARY INFORMATION: The Changes in Flood Elevation publication of these changes in a modified base (100-year) flood Determinations newspaper of local circulation, any elevations are not listed for each person has ninety (90) days in which to community in this interim rule. AGENCY: Federal Emergency request through the community that the However, the address of the Chief Management Agency (FEMA). Associate Director, Mitigation Executive Officer of the community ACTION: Interim rule. Directorate, reconsider the changes. The where the modified base (100-year) SUMMARY: This interim rule lists modified elevations may be changed flood elevation determinations are communities where modification of the during the 90-day period. available for inspection is provided. base (100-year) flood elevations is ADDRESSES: The modified base (100- Any request for reconsideration must appropriate because of new scientific or year) flood elevations for each be based upon knowledge of changed 29996 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations conditions, or upon new scientific or pursuant to policies established by other Executive Order 12612, Federalism technical data. Federal, State, or regional entities. This rule involves no policies that The modifications are made pursuant The changes in base flood elevations have federalism implications under to Section 201 of the Flood Disaster are in accordance with 44 CFR 65.4. Executive Order 12612, Federalism, Protection Act of 1973, 42 U.S.C. 4105, dated October 26, 1987. and are in accordance with the National National Environmental Policy Act Flood Insurance Act of 1968, 42 U.S.C. Executive Order 12778, Civil Justice This rule is categorically excluded 4001 et seq., and with 44 CFR Part 65. Reform For rating purposes, the currently from the requirements of 44 CFR Part This rule meets the applicable effective community number is shown 10, Environmental Consideration. No standards of Section 2(b)(2) of Executive and must be used for all new policies environmental impact assessment has Order 12778. and renewals. been prepared. The modified base (100-year) flood Regulatory Flexibility Act List of Subjects in 44 CFR Part 65 elevations are the basis for the Flood insurance, Floodplains, floodplain management measures that The Associate Director, Mitigation Reporting and recordkeeping the community is required to either Directorate, certifies that this rule is requirements. adopt or to show evidence of being exempt from the requirements of the already in effect in order to qualify or Regulatory Flexibility Act because Accordingly, 44 CFR part 65 is to remain qualified for participation in modified base (100-year) flood amended to read as follows: the National Flood Insurance Program elevations are required by the Flood PART 65Ð[AMENDED] (NFIP). Disaster Protection Act of 1973, 42 These modified elevations, together U.S.C. 4105, and are required to 1. The authority citation for part 65 with the floodplain management criteria maintain community eligibility in the continues to read as follows: required by 44 CFR 60.3, are the NFIP. No regulatory flexibility analysis has been prepared. Authority: 42 U.S.C. 4001 et seq.; minimum that are required. They Reorganization Plan No. 3 of 1978, 3 CFR, should not be construed to mean that Regulatory Classification 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, the community must change any 3 CFR, 1979 Comp., p. 376. existing ordinances that are more This interim rule is not a significant stringent in their floodplain regulatory action under the criteria of § 65.4 [Amended] management requirements. The Section 3(f) of Executive Order 12866 of 2. The tables published under the community may at any time enact September 30, 1993, Regulatory authority of § 65.4 are amended as stricter requirements of its own, or Planning and Review, 58 FR 51735. follows: Dates and name of State and county Location newspaper where no- Chief executive officer of community Effective date of Commu- tice was published modification nity No. California: Orange .. City of Irvine ..... April 20, 1995, April 27, The Honorable Michael Ward, Mayor, City March 30, 1995 .. 060222 1995, Irvine World of Irvine, P.O. Box 19575, Irvine, Califor- News. nia 92713. California: Kern ...... Unincorporated April 19, 1995, April 26, The Honorable Ken Peterson, Chairman, March 15, 1995 .. 060075 areas. 1995, Bakersfield Kern County Board of Supervisors, 1115 Californian. Truston Avenue, Fifth Floor, Bakersfield, California 93301. California: Orange .. City of Lake For- April 19, 1995, April 26, The Honorable Richard Dixon, Mayor, City March 30, 1995 .. 060759 est. 1995, Saddle Back of Lake Forest, 23778 Mercury Road, Valley News. Lake Forest, California 92630. California: Kern ...... City of April 19, 1995, April 26, The Honorable Philip Smith, Mayor, City of March 15, 1995 .. 060084 Tehachapi. 1995, Tehachapi Tehachapi, P.O. Box 668, Tehachapi, News. California 93581. Colorado: Douglas . Town of Castle April 19, 1995, April 26, The Honorable Mark Williams, Mayor, March 20, 1995 .. 080050 Rock. 1995, Douglas Coun- Town of Castle Rock, 680 North Wilcox ty News Press. Street, Castle Rock, Colorado 80104. Colorado: Douglas . Unincorporated April 19, 1995, April 26, The Honorable Robert A. Christense March 20, 1995 .. 080049 areas. 1995, Douglas Coun- n, Chairperson, Douglas County Com- ty News Press. missioners, 101 Third Street, Castle Rock, Colorado 80104. Hawaii: Honolulu .... City and County April 18, 1995, April 25, The Honorable Jeremy Harris, Mayor, City March 21, 1995 .. 150001 of Honolulu. 1995, Honolulu, Ad- and County of Honolulu, 530 South King vertiser. Street, Room 300, Honolulu, Hawaii 96813. Iowa: Tama ...... City of Tama ..... April 20, 1995, April 27, The Honorable Richard Gibson, Mayor, March 20, 1995 .. 190262 1995, Tama News City of Tama, 305 Siegel Street, Tama, Herald. Iowa 52339. Missouri: St. Louis . City of Arnold .... April 19, 1995, April 26, The Honorable Marion Becker, Mayor, City March 24, 1995 .. 290188 1995, The Press of Arnold, 2101 Jeffco Boulevard, Ar- Journal. nold, Missouri 63010. Missouri: St. Louis . City of Maryland April 19, 1995, April 26, The Honorable Michael O'Brien, Mayor, March 22, 1995 .. 290889 Heights. 1995, St. Louis Post- City of Maryland Heights, 212 Millwell Dispatch. Drive, Maryland Heights, Missouri 63043. Texas: Tarrant ...... City of Azle ...... April 20, 1995, April 27, The Honorable C. Y. Rone, Mayor, City of March 29, 1995 .. 480584 1995, Azle News. Azle, 613 Southeast Parkway, Azle, Texas 76020±3694. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29997 Dates and name of State and county Location newspaper where no- Chief executive officer of community Effective date of Commu- tice was published modification nity No. Texas: Bexar ...... Unincorporated April 4, 1995, April 11, The Honorable Cyndi Taylor Krier, Bexar March 13, 1995 .. 480035 areas. 1995, San Antonio County Judge, Bexar County Court- Express News. house, First Floor, San Antonio, Texas 78205±3036. Texas: Dallas ...... City of Dallas .... April 12, 1995, April 19, The Honorable Steve Bartlett, Mayor, City March 20, 1995 .. 480171 1995, The Dallas of Dallas, 1500 Marilla, Room 5E, Dal- Morning News. las, Texas 75201. Texas: Hardin ...... Unincorporated April 19, 1995, April 26, The Honorable Tom Mayfield, Hardin March 29, 1995 .. 480284 areas. 1995, Hardin County County Judge, Hardin County Court- News. house, P.O. Box 760, Kountze, Texas 77625. Texas: Collin ...... City of McKinney April 4, 1995, April 11, The Honorable John Gay, Mayor, City of March 13, 1995 .. 480135 1995, McKinney McKinney, P.O. Box 517, McKinney, Courier Gazette. Texas 75069. Texas: Tarrant ...... City of North April 20, 1995, April 27, The Honorable Tommy Brown, Mayor, City March 28, 1995 .. 480607 Richland Hills. 1995, Mid-Cities of North Richland Hills, 7301 North East News. Loop 820, North Richland Hills, Texas 76180. Texas: Collin ...... City of Plano ..... April 19, 1995, April 26, The Honorable James N. Muns, Mayor, March 30, 1995 .. 480140 1995, Plano Star City of Plano, P.O. Box 860358, Plano, Courier. Texas 75086±0358. Texas: Bexar ...... Town of April 4, 1995, April 11, The Honorable Thomas Peyton, Mayor, March 13, 1995 .. 480047 Shavano Park. 1995, San Antonio Town of Shavano Park, City Hall, 99 Express News. Saddletree Road, Shavano Park, Texas 78231. (Catalog of Federal Domestic Assistance No. available for inspection at the office of The base flood elevations and 83.100, ‘‘Flood Insurance.’’) the Chief Executive Officer of each modified base flood elevations are made Dated: May 31, 1995. community. The respective addresses final in the communities listed below. Frank H. Thomas, are listed in the table below. Elevations at selected locations in each Deputy Associate Director for Mitigation. FOR FURTHER INFORMATION CONTACT: community are shown. [FR Doc. 95–13907 Filed 6–6–95; 8:45 am] Michael K. Buckley, P.E., Chief, Hazard National Environmental Policy Act BILLING CODE 6718±03±P Identification Branch, Mitigation Directorate, 500 C Street SW., This rule is categorically excluded Washington, DC 20472, (202) 646–2756. from the requirements of 44 CFR Part 44 CFR Part 67 SUPPLEMENTARY INFORMATION: The 10, Environmental Consideration. No Final Flood Elevation Determinations Federal Emergency Management Agency environmental impact assessment has makes final determinations listed below been prepared. AGENCY: Federal Emergency of base flood elevations and modified Management Agency (FEMA). base flood elevations for each Regulatory Flexibility Act ACTION: Final rule. community listed. The proposed base The Associate Director, Mitigation flood elevations and proposed modified Directorate, certifies that this rule is SUMMARY: Base (100-year) flood base flood elevations were published in exempt from the requirements of the elevations and modified base (100-year) newspapers of local circulation and an Regulatory Flexibility Act because final flood elevations are made final for the opportunity for the community or or modified base flood elevations are communities listed below. The base individuals to appeal the proposed required by the Flood Disaster (100-year) flood elevations and modified determinations to or through the Protection Act of 1973, 42 U.S.C. 4104, base flood elevations are the basis for community was provided for a period of the floodplain management measures and are required to establish and ninety (90) days. The proposed base maintain community eligibility in the that each community is required either flood elevations and proposed modified NFIP. No regulatory flexibility analysis to adopt or to show evidence of being base flood elevations were also has been prepared. already in effect in order to qualify or published in the Federal Register. remain qualified for participation in the This final rule is issued in accordance Regulatory Classification National Flood Insurance Program with Section 110 of the Flood Disaster (NFIP). Protection Act of 1973, 42 U.S.C. 4104, This final rule is not a significant EFFECTIVE DATES: The date of issuance of and 44 CFR Part 67. regulatory action under the criteria of the Flood Insurance Rate Map (FIRM) FEMA has developed criteria for Section 3(f) of Executive Order 12866 of showing base flood elevations and floodplain management in floodprone September 30, 1993, Regulatory modified base flood elevations for each areas in accordance with 44 CFR Part Planning and Review, 58 FR 51735. community. This date may be obtained 60. Executive Order 12612, Federalism by contacting the office where the FIRM Interested lessees and owners of real is available for inspection as indicated property are encouraged to review the This rule involves no policies that on the table below. proof Flood Insurance Study and FIRM have federalism implications under ADDRESSES: The final base flood available at the address cited below for Executive Order 12612, Federalism, elevations for each community are each community. dated October 26, 1987. 29998 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations Executive Order 12778, Civil Justice PROPOSED BASE (100-YEAR) FLOOD PROPOSED BASE (100-YEAR) FLOOD Reform ELEVATIONSÐContinued ELEVATIONSÐContinued This rule meets the applicable #Depth in #Depth in standards of Section 2(b)(2) of Executive feet above feet above ground. Source of flooding and location ground. Order 12778. Source of flooding and location *Elevation *Elevation in feet in feet List of Subjects in 44 CFR Part 67 (NGVD) (NGVD) Administrative practice and ÐÐÐ Tributary C: procedure, Flood insurance, Reporting Maricopa County (incorporated At confluence with Star Wash ...... *1,579 areas) (FEMA Docket No. 7126) Approximately 4,100 feet upstream of and recordkeeping requirements. confluence with Star Wash ...... *1,610 Rainbow Wash: Tributary D: Accordingly, 44 CFR part 67 is At confluence with Gila River ...... *717 At confluence with Star Wash ...... *1,539 amended to read as follows: Approximately 12,000 feet upstream Approximately 4,500 feet upstream of of confluence with Gila River ...... *790 confluence with Tributary E ...... *1,600 PART 67Ð[AMENDED] Approximately 20,000 feet upstream Tank Wash: of confluence with Gila River ...... *837 Approximately 3,300 feet upstream of Just upstream of State Route 85 ...... *907 confluence with Star Wash ...... *1,470 1. The authority citation for Part 67 Approximately 19,400 feet upstream Approximately 20,000 feet upstream continues to read as follows: of State Route 85 ...... *991 of confluence with Star Wash ...... *1,560 Rainbow Wash Tributary: Approximately 4,900 feet upstream of Authority: 42 U.S.C. 4001 et seq.; At confluence with Rainbow Wash .... *892 confluence with South Branch Tank Reorganization Plan No. 3 of 1978, 3 CFR, Approximately 8,000 feet upstream of Wash ...... *1,650 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, confluence with Rainbow Wash ..... *924 South Branch Tank Wash: Luke Wash: 3 CFR, 1979 Comp., p. 376. Approximately 1,000 feet upstream of At confluence with Gila River ...... *784 confluence with Tank Wash ...... *1,626 At Narramore Road ...... *829 § 67.11 [Amended] Approximately 4,600 feet upstream of Just downstream of Southern Pacific confluence with Tank Wash ...... *1,649 Railroad ...... *857 Powerline Wash: 2. The tables published under the Minor Tributary to Luke Wash: authority of § 67.11 are amended as Approximately 4,800 feet upstream of Approximately 2,050 feet upstream of confluence with Star Wash ...... *1,443 follows: confluence with Luke Wash ...... *826 Approximately 27,700 feet upstream Approximately 6,700 feet upstream of of confluence with Star Wash ...... *1,570 confluence with Luke Wash ...... *858 PROPOSED BASE (100-YEAR) FLOOD Approximately 55,000 feet upstream East Main Tributary to Luke Wash: of confluence with Star Wash ...... *1,741 ELEVATIONS At Telegraph Pass Road ...... *823 Daggs Wash: Just downstream of Southern Pacific Approximately 900 feet upstream of #Depth in Railroad ...... *854 confluence with Hassayampa River *1,255 feet above East Subtributary to Luke Wash: Just upstream of Central Arizona ground. At Telegraph Pass Road ...... *823 Project Canal ...... *1,382 Source of flooding and location *Elevation Approximately 3,500 feet upstream of Approximately 35,700 feet upstream in feet Telegraph Pass Road ...... *837 (NGVD) of confluence with Hassayampa Sand Tank Wash: River ...... *1,482 At North Indian Road ...... *662 ARIZONA Approximately 50,000 feet upstream At South Indian Road ...... *717 of confluence with Hassayampa At Interstate 8 ...... *768 River ...... *1,564 Flagstaff (city), Coconino County Bender Wash: Just upstream of Peakview Road ...... *1,672 (FEMA Docket No. 7126) At confluence with Sand Tank Wash . *720 West Breakout Wash: Fanning Drive Wash: At South Main Street ...... *749 At downstream confluence with Just upstream of Interstate Highway At Interstate 8 ...... *779 Daggs Wash ...... *1,610 40 (west side) ...... *6,784 Unnamed Wash No. 1 (Tributary to At upstream confluence with Daggs Approximately 100 feet downstream Bender Wash): Wash ...... *1,655 of Industrial Drive ...... *6,800 At confluence with Bender Wash ...... *746 East Split Flow: Approximately 300 feet downstream At Interstate 8 ...... *834 At downstream confluence with of U.S. Highway 89 ...... *6,824 Approximately 2,600 feet upstream of Daggs Wash ...... *1,610 Interstate 8 ...... *852 At Fanning Drive ...... *6,834 At upstream confluence with Daggs Unnamed Wash No. 2 (Tributary to Penstock Avenue Wash: Wash ...... *1,628 Bender Wash): Approximately 2,000 feet downstream Apache Wash: At confluence with Unnamed Wash of Atchison, Topeka, and Santa Fe Approximately 12,700 feet down- No. 1 ...... *746 Railroad spur ...... *6,767 stream of confluence with Paradise At Business Route 8 ...... *801 At Railhead Avenue ...... *6,785 Wash ...... *1,660 Approximately 5,600 feet upstream of At confluence with Paradise Wash .... *1,736 Approximately 340 feet upstream of Business Route 8 ...... *839 At New River Road ...... *1,886 Commerce Avenue ...... *6,810 Scott Avenue Wash: Approximately 2,500 feet upstream of Maps are available for inspection at At Watermelon Road ...... *677 confluence with Apache Wash City Hall, City of Flagstaff, City At Southern Pacific Railroad ...... *739 West Fork ...... *2,022 Clerk's Office, Flagstaff, Arizona. At Interstate 8 ...... *755 Apache Wash-Split Flow: ÐÐÐ Star Wash: At downstream confluence with Coconino County (unincorporated Approximately 8,700 feet upstream of Apache Wash ...... *1,786 areas) (FEMA Docket No. 7126) confluence with Jackrabbit Wash ... *1,410 At upstream confluence with Apache Approximately 5,100 feet upstream of Wash ...... *1,811 Fanning Drive Wash: confluence with Tank Wash ...... *1,485 West Fork Apache Wash: Approximately 90 feet downstream of At confluence with Tributary D ...... *1,549 At confluence with Apache Wash ...... *1,992 Atchison, Topeka, and Santa Fe Approximately 1,400 feet upstream of Approximately 3,000 feet above con- Railroad ...... *6,806 Haul Road ...... *1,606 fluence with Apache Wash ...... *2,044 Approximately 3,600 feet upstream of Tributary A: Paradise Wash: Atchison, Topeka, and Santa Fe Approximately 5,800 feet upstream of At confluence with Apache Wash ...... *1,736 Railroad ...... *6,824 confluence with Star Wash ...... *1,534 At confluence with Ranieri Tank Maps are available for inspection at At confluence with Tributary B ...... *1,551 Wash ...... *1,832 Coconino County Community Devel- Tributary B: Approximately 7,100 feet upstream of opment, Planning and Zoning, 219 At confluence with Tributary A ...... *1,551 New River Road ...... *2,015 East Cherry Street, Flagstaff, Ari- Approximately 200 feet upstream of West Fork Paradise Wash: zona. Haul Road ...... *1,593 At confluence with Paradise Wash .... *1,794 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 29999 PROPOSED BASE (100-YEAR) FLOOD PROPOSED BASE (100-YEAR) FLOOD PROPOSED BASE (100-YEAR) FLOOD ELEVATIONSÐContinued ELEVATIONSÐContinued ELEVATIONSÐContinued #Depth in #Depth in #Depth in feet above feet above feet above Source of flooding and location ground. ground. Source of flooding and location ground. *Elevation Source of flooding and location *Elevation *Elevation in feet in feet in feet (NGVD) (NGVD) (NGVD) Approximately 5,100 feet upstream of Approximately 2,700 feet upstream of In the Town of Carefree, maps are Carefree Highway ...... *1,851 Camelback Road Extended ...... *1,286 available for inspection at 100 Easy Ranieri Tank Wash: Bulldozer Wash: Street At confluence with Paradise Wash .... *1,832 At confluence with Tuthill Dike Wash *1,095 In the Town of Cave Creek, maps are Approximately 3,850 feet upstream of Approximately 13,800 feet upstream available for inspection at 37622 unnamed road ...... *1,892 of confluence with Tuthill Dike North Cave Creek Road Desert Hills Wash: Wash ...... *1,678 In the City of Chandler, maps are At confluence with Apache Wash ...... *1,740 Caterpillar Wash: available for inspection at 200 East At Carefree Highway ...... *1,780 At confluence with Tuthill Dike Wash *1,191 Commonwealth Avenue Approximately 50 feet upstream of Approximately 11,750 feet upstream In the City of El Mirage, maps are 20th Street ...... *1,898 of confluence with Tuthill Dike available for inspection at 14405 Desert Hills Wash Tributary: Wash ...... *1,402 North Palm Street At confluence with Desert Hills Wash *1,885 Tractor Wash: In the Town of Gila Bend, maps are Approximately 50 feet upstream of At confluence with Tuthill Dike Wash *1,213 available for inspection at 644 West LaSalle Road ...... *1,902 Approximately 3,400 feet upstream of Pima Street East Fork Desert Lake Wash: Camelback Road Extended ...... *1,452 In the Town of Gilbert, maps are At confluence with Desert Lake Wash *1,781 Caterpillar Dike Wash: available for inspection at 1025 Approximately 1,100 feet upstream of At confluence with Tuthill Dike Wash *1,285 South Gilbert Road 10th Street ...... *1,797 Approximately 2,700 feet upstream of In the City of Glendale, maps are Desert Lake Wash: Caterpillar Proving Grounds Road . *1,296 available for inspection at 5850 At confluence with Desert Hills Wash *1,775 White Granite Wash: West Glendale Avenue, Third Floor Approximately 1,200 feet upstream of Approximately 2,000 feet downstream In the City of Goodyear, maps are Gavin Road ...... *1,796 of Caterpillar Proving Grounds available for inspection at 119 Mesquite Tank Wash: Road ...... *1,348 North Litchfield Road Approximately 900 feet downstream Approximately 5,600 feet upstream of In the Town of Guadalupe, maps are of Cave Buttes Recreational Area Caterpillar Proving Grounds Road . *1,512 available for inspection at 9050 boundary limits ...... *1,657 North Fork White Granite Wash: South Avenida del Yaqui Approximately 7,700 feet upstream of At confluence with White Granite In the City of Litchfield Park, maps Cave Buttes Recreational Area Wash ...... *1,399 are available for inspection at 214 boundary limits ...... *1,722 Approximately 3,500 feet upstream of West Indian School Road Beardsley Canal Wash: confluence with White Granite In Maricopa County, maps are avail- Approximately 4,900 feet downstream Wash ...... *1,510 able for inspection at 301 West Jef- of Northern Avenue ...... *1,200 91st Avenue Wash: ferson Street, Tenth Floor At Olive Avenue ...... *1,275 Approximately 600 feet downstream In the Town of Paradise Valley, maps Approximately 2,600 feet upstream of of McDowell Road ...... *1,057 are available for inspection at 6517 Peoria Avenue Extended ...... *1,322 At Indian School Road ...... *1,135 East Lincoln Drive Cholla Wash: Approximately 4,700 feet upstream of In the City of Phoenix, maps are At confluence with Beardsley Canal Camelback Road ...... *1,166 available for inspection at 200 West Wash ...... *1,249 Perryville Road Wash: Washington Street, Fifth Floor At Olive Avenue ...... *1,299 Approximately 2,500 feet downstream In the City of Scottsdale, maps are Approximately 17,600 feet upstream of the intersection of Camelback available for inspection at 3939 of Olive Avenue ...... *1,843 Road and Perryville Road ...... *1,121 North Civic Center Boulevard North Fork Cholla Wash: Approximately 900 feet upstream of In the City of Surprise, maps are At confluence with Cholla Wash ...... *1,675 Northern Avenue ...... *1,229 available for inspection at 12425 Approximately 2,770 feet upstream of Bullard Wash: West Bell Road, Building D±100 confluence with Cholla Wash ...... *1,950 Approximately 900 feet downstream In the City of Tempe, maps are avail- Waterfall Wash: of Lower Buckeye Road ...... *944 able for inspection at 31 East Fifth At confluence with Beardsley Canal .. *1,278 At McDowell Road ...... *944 Street Approximately 18,800 feet upstream Approximately 23,900 feet upstream of confluence with Beardsley Canal *1,646 of McDowell Road ...... *1,063 CALIFORNIA White Tank No. 3 Wash: Approximately 9,400 feet downstream Lower El Mirage Wash: of Northern Avenue Extended ...... *1,198 At confluence with Agua Fria River ... *1,096 Anderson (city), Shasta County Approximately 7,300 feet upstream of Approximately 1,550 feet upstream of (FEMA Docket No. 7106) Northern Avenue Extended ...... *1,444 Dysart Road ...... *1,147 Tormey Drain: Bedrock Wash: Lower El Mirage Wash Tributary: Approximately 370 feet upstream of Approximately 4,700 feet downstream At confluence with Lower El Mirage Davey Way ...... *401 of confluence with North Fork Bed- Wash ...... *1,119 Approximately 200 feet downstream rock Wash ...... *1,199 At Greenway Road ...... *1,166 of Rupert Road ...... *408 Approximately 6,900 feet upstream of At the intersection of Greenway Road Approximately 450 feet upstream of confluence with North Fork Bed- and Litchfield Road ...... *1,182 Stingy Lane ...... *411 rock Wash ...... *1,466 Litchfield Wash: Approximately 700 feet northeast of North Fork Bedrock Wash: Approximately 5,700 feet downstream the intersection of Balls Ferry Road At confluence with Bedrock Wash ..... *1,239 of Litchfield Road ...... *1,064 and Stingy Lane ...... #1 Approximately 9,200 feet upstream of At Litchfield Road ...... *1,077 Approximately 1,400 feet southeast of confluence with Bedrock Wash ...... *1,442 Interstate 10: the intersection of Julie Lane and Jackrabbit Trail Wash: At confluence with Jackrabbit Trail Travelled Way ...... #1 Approximately 3,650 feet downstream Wash ...... *1,071 Approximately 2,200 feet southeast of of Interstate 10 eastbound off ramp *1,041 Just downstream of Tuthill Dike ...... *1,089 the intersection of Julie Lane and At Indian School Road ...... *1,156 In the City of Avondale, maps are Travelled Way ...... #3 At Medlock Drive ...... *1,186 available for inspection at 1211 At the intersection of Sharon Avenue Tuthill Dike Wash: South Fourth Street and North Street ...... #1 Approximately 4,800 feet downstream In the Town of Buckeye, maps are Approximately 900 feet north of the of Interstate 10 ...... *1,144 available for inspection at 100 intersection of East Street and Mill At Indian School Road Extended ...... *1,214 North Apache Street ...... #1 30000 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations PROPOSED BASE (100-YEAR) FLOOD PROPOSED BASE (100-YEAR) FLOOD PROPOSED BASE (100-YEAR) FLOOD ELEVATIONSÐContinued ELEVATIONSÐContinued ELEVATIONSÐContinued #Depth in #Depth in #Depth in feet above feet above feet above ground. ground. Source of flooding and location ground. Source of flooding and location Source of flooding and location *Elevation *Elevation *Elevation in feet in feet in feet (NGVD) (NGVD) (NGVD) Maps are available for inspection at Maps are available for inspection at ÐÐÐ City Hall, City of Anderson, 1887 Sonoma County Permits & Resource Kauai County (unincorporated areas) Howard Street, Anderson, California. Management, 575 Administration (FEMA Docket No. 7126) Way, Room 114A, Santa Rosa, Cali- ÐÐÐ Pacific Ocean: fornia. El Dorado County (unincorporated In the vicinity of the intersection of areas) (FEMA Docket No. 7126) Kaumualii Highway and Akekeke HAWAII Road ...... *10±14 New York Creek: In the vicinity of the intersection of Approximately 500 feet downstream Honolulu (city and county) (FEMA Kaumualii Highway and Aukuu of Green Valley Road ...... *583 Docket No. 7126) Road ...... *8±12 Approximately 100 feet upstream of Kapakahi Stream: In the vicinity of Kikiaola Harbor ...... *10±11 Green Valley Road ...... *594 Approximately 3,860 feet downstream In the vicinity of the intersection of Approximately 650 feet upstream of of Farrington Highway ...... *2 Pokole Road and Laau Road ...... *9±13 Timberline Ridge Drive ...... *600 Approximately 320 feet downstream In the vicinity of the intersection of Approximately 3,000 feet upstream of of Farrington Highway ...... *10 Kaalani Road and Kuiloko Road Timberline Ridge Drive ...... *651 Approximately 900 feet upstream of and Port Allen Airport ...... *5±14 Approximately 2,000 feet downstream Farrington Highway ...... *15 At Hanapepe Bay, in the vicinity of of St. Andrews Drive ...... *707 Makaha Stream: the mouth of Hanapepe River ...... *9±13 Approximately 100 feet upstream of Just upstream of Farrington Highway *13 At Kukuiula Bay, in the vicinity of the St. Andrews Drive ...... *730 Approximately 3,700 feet upstream of intersection of Lawai Road and Approximately 1,150 feet downstream Farrington Highway ...... *83 Alania Road ...... *13±16 of Harvard Way ...... *747 Approximately 600 feet upstream of At Nahumaalo Point, near the mouth Approximately 150 feet upstream of Huipu Drive ...... *237 of Waikomo Stream ...... *16±17 Harvard Way ...... *770 Wailani Canal: In the vicinity of the intersection of Governor Drive Tributary: Approximately 90 feet downstream of Hoone Road with Nalo Road and Maa Road ...... *16±19 Approximately 550 feet downstream Waipio Access Road ...... *2 At Keoniloa Bay ...... *10 of Tam O'Shanter Drive ...... *720 Approximately 900 feet upstream of Approximately 80 feet downstream of Waipio Access Road ...... *2 Maps are available for inspection at El Dorado Hills Boulevard ...... *735 Approximately 3,100 feet upstream of the Kauai County Department of Pub- Approximately 400 feet upstream of Waipio Access Road ...... *5 lic Works, 3021 Umi Street, Lihue, Hawaii. El Dorado Hills Boulevard ...... *745 Maps are available for inspection at Approximately 50 feet upstream of the Department of Land Utilization, KANSAS Merrium Lane ...... *761 Information Center, Honolulu Munici- Maps are available for inspection at pal Building, First Floor, 650 South King Street, Honolulu, Hawaii. Dodge City (city), Ford County the Department of Transportation, El (FEMA Docket No. 7126) Dorado County, 2850 Fairlane Coun- ÐÐÐ ty, Placerville, California. Arkansas River: Kauai County (unincorporated areas) Approximately 7,000 feet downstream ÐÐÐ (FEMA Docket No. 7103) of South Second Avenue ...... *2,474 Shasta County (unincorporated Kalama Stream: Approximately 4,000 feet downstream areas) (FEMA Docket No. 7106) Approximately 2,500 feet upstream of of South Second Avenue ...... *2,478 Puuopae Road ...... *327 Tormey Drain: Approximately 600 feet downstream Approximately 4,770 feet upstream of of South Second Avenue ...... *2,482 Just upstream of Dodson Lane ...... *405 Puuopae Road ...... *350 Approximately 150 feet downstream Approximately 1,300 feet upstream of Approximately 7,300 feet upstream of of the Atchison, Topeka, and Santa Dodson Lane ...... *405 Puuopae Road ...... *400 Fe Railroad ...... *2,486 Approximately 1,600 feet northwest of Hanamaulu Stream: Approximately 100 feet downstream the intersection of Brenda and Approximately 1,100 feet upstream of of 14th Avenue ...... *2,488 # Shelly Lanes ...... 1 confluence with Hanamaulu Bay .... *11 Chilton Creek: Approximately 3,000 feet northwest of Approximately 80 feet upstream of Approximately 100 feet downstream the intersection of Balls Ferry Road Access Road ...... *35 of Wyatt Earp Boulevard ...... *2,489 and Shelly Lane ...... #1 Approximately 120 feet downstream Approximately 175 feet downstream Approximately 2,600 feet northwest of of Kuhio Highway ...... *89 of West Ash Street ...... *2,514 the intersection of Brenda and Approximately 1,200 feet upstream of Approximately 175 feet downstream Shelly Lanes ...... #3 Kuhio Highway ...... *116 of Comanche Street ...... *2,536 Maps are available for inspection at Hanamaulu Stream Tributary: Approximately 1,200 feet upstream of the Department of Public Works, At confluence with Hanamaulu Comanche Street ...... *2,550 7855 Placer Street, Redding, Califor- Stream ...... *106 Approximately 2,450 feet upstream of nia. Approximately 500 feet upstream of Comanche Street ...... *2,562 ÐÐÐ Maalo Road ...... *106 Maps are available for inspection at Waikomo Stream: the City Engineer's Office, City of Sonoma County (unincorporated At confluence with Omao Stream ...... *223 areas) (FEMA Docket No. 7126) Dodge City, 705 First Avenue, Just upstream of Maluhia Road ...... *217 Dodge City, Kansas. Russian River: Just upstream of Cane Road ...... *220 Approximately 9,500 feet upstream of Approximately 1,000 feet upstream of ÐÐÐ State Highway 128 ...... *181 Wailaau Road ...... *223 Ford County (unincorporated areas) Approximately 12,700 feet upstream Waikomo Stream Tributary: (FEMA Docket No. 7126) of State Highway 128 ...... *184 At confluence with Waikomo Stream . *221 Arkansas River: Approximately 17,000 feet upstream Approximately 50 feet downstream of Approximately 160 feet downstream of State Highway 128 ...... *188 Wailaau Road ...... *221 of an unimproved road ...... *2,456 Approximately 6,800 feet downstream Maps are available for inspection at Approximately 700 feet downstream of Geyersville Road ...... *199 the Department of Public Works, En- of South East Bypass Bridge ...... *2,467 Approximately 5,400 feet downstream gineering Division, 3021 Umi Street, Approximately 900 feet upstream of of Geyersville Road ...... *202 Lihue, Kauai, Hawaii. 14th Avenue ...... *2,490 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 30001 PROPOSED BASE (100-YEAR) FLOOD PROPOSED BASE (100-YEAR) FLOOD PROPOSED BASE (100-YEAR) FLOOD ELEVATIONSÐContinued ELEVATIONSÐContinued ELEVATIONSÐContinued #Depth in #Depth in #Depth in feet above feet above feet above ground. Source of flooding and location ground. Source of flooding and location ground. *Elevation *Elevation Source of flooding and location *Elevation in feet in feet in feet (NGVD) (NGVD) (NGVD) Approximately 6,550 feet upstream of At the upstream Limit of Detailed TEXAS 14th Avenue ...... *2,495 Study located approximately 2,550 Approximately 7,860 feet upstream of feet upstream of confluence with Kaufman County (unincorporated 14th Avenue ...... *2,497 North Fork (Tributary 3) Alameda areas) (FEMA Docket No. 7122) Arroyo ...... *4,290 Maps are available for inspection at North Fork (Tributary 3) Alameda Ar- Kings Creek (Upper Reach): the Ford County Engineer's Office, royo: At Highway 34 ...... *443 100 Gunsmoke, Dodge City, Kansas. At confluence with North Fork (Tribu- At confluence of Harding Branch ...... *450 tary 2) Alameda Arroyo ...... *4,248 At Airport Road ...... *451 MISSOURI Just downstream of Jornada Road At College Mound Road ...... *458 South ...... *4,254 At Fransis Street ...... *486 Branson (city), Taney County (FEMA Approximately 2,270 feet upstream of Hardin Branch: Docket No. 7132) Jornada Road South ...... *4,288 At Airport Road ...... *451 Roark Creek: Flow Path 8 (North Fork Las Cruces Ar- Maps are available for inspection at At confluence with White River (Lake royo): the Kaufman County Courthouse, Taneycomo) ...... *714 Upstream of U.S. Government Dam .. *4,107 Just downstream of Road Runner 3950 South Huston Street, Kaufman, Approximately 700 feet upstream of Parkway ...... *4,144 Texas. U.S. Highway 65 ...... *720 Just upstream of Paseo De Onate Approximately 8,200 feet upstream of Road ...... *4,182 UTAH U.S. Highway 65 ...... *749 Approximately 1,570 feet upstream of Approximately 3,800 feet downstream Paseo De Onate Road ...... *4,203 Riverdale (city), Weber County of Shepherd of the Hills Express- Flow Path 9 (South Fork Las Cruces (FEMA Docket No. 7122) way ...... *772 Arroyo): Approximately 3,400 feet upstream of Upstream of U.S. Government Dam .. *4,107 Weber River: Shepherd of the Hills Expressway . *801 Upstream of Road Runner Parkway .. *4,148 Approximately 5,800 feet downstream Cooper Creek: Just upstream of unnamed road ...... *4,207 of Riverdale Road ...... *4,327 Approximately 2,000 feet downstream Little Dam Arroyo: Approximately 3,350 feet downstream of Fall Creek Road ...... *727 Approximately 950 feet downstream of Riverdale Road ...... *4,337 Approximately 200 feet upstream of of Foothills Road ...... *4,125 Just upstream of Riverdale Road ...... *4,351 Fall Creek Road ...... *764 Approximately 150 feet upstream of Approximately 4,000 feet upstream of Approximately 2,700 feet upstream of Foothills Road ...... *4,156 Riverdale Road ...... *4,363 Approximately 80 feet upstream of Fall Creek Road ...... *804 At confluence of Weber Canal ...... *4,371 Maps are available for inspection at Paseo De Onate Road ...... *4,209 Approximately 3,700 feet upstream of Approximately 2,400 feet upstream of City Hall, City of Branson, 110 West Weber Canal ...... *4,385 Maddux, Branson, Missouri. Paseo De Onate Road ...... *4,268 North Fork Moreno Arroyo: Approximately 3,500 feet upstream of Approximately 1,320 feet upstream of Weber Canal ...... *4,388 NEW MEXICO El Camino Real ...... *3,928 Maps are available for inspection at Just downstream of Moreno Road ..... *3,976 the Building and Zoning Office, 4600 Las Cruces (City) and Dona Ana Just upstream of northbound Inter- South Weber River Drive, Riverdale, County (Unincorporated Areas) state Highway 25 ...... *4,026 Utah. (FEMA Docket No. 7122) Approximately 75 feet upstream of ÐÐÐ Del Rey Boulevard ...... *4,072 Flow Path 3 (Alameda Main Arroyo): Approximately 5,510 feet upstream of Weber County (unincorporated Upstream of U.S. Government Dam .. *4,107 Del Rey Boulevard ...... *4,217 areas) (FEMA Docket No. 7122) Approximately 170 feet upstream of Approximately 8,780 feet upstream of Weber River: Road Runner Parkway ...... *4,136 Del Rey Boulevard ...... *4,286 Approximately 200 feet upstream of Just upstream of confluence of North Ponding area located upstream of El confluence with Burch Creek ...... *4,332 Fork (Tributary 2) Alameda Arroyo . *4,218 Camino Real (Zone AH) ...... *3,914 Approximately 1,300 feet upstream of Just upstream of Jornada Road Zone AO located approximately 1,300 confluence with Burch Creek ...... *4,336 South ...... *4,226 feet upstream of El Camino Real ... #3 Approximately 2,400 feet upstream of Approximately 2,070 feet upstream of South Fork Moreno Arroyo: confluence with Weber Canal ...... *4,385 Jornada Road South ...... *4,250 Approximately 1,300 feet upstream of South Fork (Tributary 1) Alameda Ar- El Camino Real ...... *3,929 Approximately 3,500 feet upstream of royo: Approximately 30 feet upstream of confluence with Weber Canal ...... *4,388 At confluence with Flow Path 3 (Ala- Kennedy Road ...... *3,972 Approximately 4,000 feet upstream of meda Main Arroyo) ...... *4,184 Just upstream of Elks Road ...... *4,013 confluence with Weber Canal ...... *4,394 Just upstream of Jornada Road At Del Rey Boulevard ...... *4,073 Maps are available for inspection at South ...... *4,234 Approximately 4,430 feet upstream of the County Planning Commission, Approximately 2,360 feet upstream of Del Rey Boulevard ...... *4,185 2510 Washington Boulevard, Odgen, Jornada Road South ...... *4,268 Approximately 7,450 feet upstream of Utah. North Fork (Tributary 2) Alameda Ar- Del Rey Boulevard ...... *4,268 royo: South Fork Moreno Arroyo Split Flow at (Catalog of Federal Domestic Assistance No. Interstate 25: At confluence with Flow Path 3 (Ala- 83.100, ‘‘Flood Insurance’’) meda Main Arroyo) ...... *4,218 At Del Rey Boulevard ...... *4,072 Just downstream of an unnamed Maps are available for inspection at Dated: May 31, 1995. road located approximately 480 the City Engineer's Office, City of Las Frank H. Thomas, feet upstream of confluence with Cruces, 200 North Church Street, Las Flow Path 3 (Alameda Main Ar- Cruces, New Mexico. Deputy Associate Director for Mitigation. royo) ...... *4,224 Maps are available for inspection at [FR Doc. 95–13909 Filed 6–6–95; 8:45 am] Just downstream of an unnamed the Office of Flood Commission, road located just upstream of con- Dona Ana County, 108 West Amador, BILLING CODE 6718±03±P fluence of North Fork (Tributary 3) Las Cruces, New Mexico. Alameda Arroyo ...... *4,249 30002 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations FEDERAL COMMUNICATIONS an annual effect on the economy of $100 DEPARTMENT OF ENERGY COMMISSION million or more. 48 CFR Parts 915, 931, 942, 951, 952, In addition, it has been determined 47 CFR Part 0 and 970 that this proposed rule will not have a [DA 95±1053] significant economic impact on a RIN 1991±AB12 substantial number of small entities. General Information Independent Research and List of Subjects in 47 CFR Part 0 Development and Bid and Proposal AGENCY: Federal Communications Costs Policy Commission. Freedom of information. ACTION: Final rule. Federal Communications Commission. AGENCY: Department of Energy. ACTION: Richard D. Lee, Final rule. SUMMARY: The Federal Communications Commission is modifying a section of Deputy Managing Director. SUMMARY: The Department of Energy (DOE) amends its Acquisition the Commission’s Rules that Amendatory Text implements the Freedom of Information Regulation to effect changes to Act (FOIA) fee schedule. This Part 0 of Chapter I of Title 47 of the Independent Research and Development modification pertains to the charge for Code of Federal Regulations is amended (IR&D) and Bid and Proposal Costs recovery of the full, allowable direct as follows: (B&P); and reflect Federal Acquisition costs of searching for and reviewing Regulation (FAR) changes to the Cost records requested under the FOIA and PART 0ÐCOMMISSION Accounting Standards (CAS). § 0.460(e) or § 0.461 of the ORGANIZATION Additionally, there are technical Commission’s rules, unless such fees are changes updating references, correcting restricted or waived in accordance with 1. The authority citation for Part 0 editorial errors, and clarifying language. § 0.470. The fees are being revised to continues to read as follows: EFFECTIVE DATE: June 7, 1995. correspond to modifications in the rate Authority; 47 U.S.C. 155, 225, unless FOR FURTHER INFORMATION CONTACT: of pay approved by Congress. otherwise noted. Terrence D. Sheppard (202) 586–8174, EFFECTIVE DATE: July 7, 1995. Business and Financial Policy Division 2. Section 0.467 is amended by (HR–51), Office of Procurement and FOR FURTHER INFORMATION CONTACT: Judy revising the table in paragraph (a)(1) and Assistance Management, Department of Boley, Freedom of Information Act its note, and paragraph (a)(2) to read as Energy, 1000 Independence Avenue, Officer, Records Management Branch, follows: SW., Washington, D.C., 20585. Room 234, Federal Communications Commission, 1919 M Street NW., § 0.467 Search and review fees. SUPPLEMENTARY INFORMATION: Washington, DC 20554, (202) 418–0210. (a)(1) * * * I. Background SUPPLEMENTARY INFORMATION: The FCC II. Procedural Requirements is modifying 47 CFR 0.467(a) of the Hourly A. Review Under Executive Order 12866 Commission’s Rules. This rule pertains Grade fee B. Review Under Executive Order 12778 to the charges for searching and C. Review Under the Regulatory Flexibility reviewing records requested under the GSÐ1 ...... 8.27 Act Freedom of Information (FOIA). The GSÐ2 ...... 9.01 D. Review Under the Paperwork Reduction Act FOIA requires federal agencies to GSÐ3 ...... 10.15 E. Review Under the National GSÐ4 ...... 11.40 establish a schedule of fees for the Environmental Policy Act processing of requests for agency GSÐ5 ...... 12.76 F. Review Under Executive Order 12612 records in accordance with fee guidance GSÐ6 ...... 14.21 issued by the Office of Management and GSÐ7 ...... 15.79 I. Background Budget (OMB). In 1987, OMB issued its GSÐ8 ...... 17.49 DOE published a notice of proposed Uniform Freedom of Information Act GSÐ9 ...... 19.33 rulemaking in the Federal Register on Fee Schedule and Guidelines. However, GSÐ10 ...... 21.28 October 31, 1994. The public comment because the FOIA requires that each GSÐ11 ...... 23.37 period closed December 30, 1994. No agency’s fees be based upon its direct GSÐ12 ...... 28.01 public comments were received. costs of providing FOIA services, OMB GSÐ13 ...... 33.32 However, those portions of the proposed did not provide a unitary, government- GSÐ14 ...... 39.36 rule which addressed reimbursement of wide schedule of fees. The Commission GSÐ15 ...... 46.31 contractor travel costs (sections based its FOIA fee schedule on the 970.3102–17(c)(7), 970.5204–13(e)(35), grade level of the employee who Note: These fees will be modified and 970.5204–14(e)(33)) have been processes the request. Thus, the fee periodically to correspond with withdrawn from this final rule, because schedule was computed at a Step 5 of modifications in the rate of pay approved by section 2191 of the Federal Acquisition each grade level based on the General Congress. Streamlining Act of 1994, Pub. L. 103– Schedule effected January 1995. The (2) The fees in paragraph (a)(1) of this 355, repealed the statutory basis for the instant revisions correspond to section were computed at Step 5 of each policy. A detailed list of changes modifications in the rate of pay recently grade level based on the General follows: approved by Congress. Schedule effective January 1995 and 1. The authority citation for Parts 915, 931, 942, 951, and 952 is restated. Regulatory Procedures include 19 percent for personnel benefits. 2. Subsection 915.805–5 is amended This proposed rule has been reviewed to delete the requirement in paragraph under Executive Order No. 12866 and * * * * * (c)(1) that a copy of the audit request be has been determined not to be a [FR Doc. 95–13875 Filed 6–6–95; 8:45 am] sent to the DOE Inspector General (IG). ‘‘significant rule’’ since it will not have BILLING CODE 6712±01±M Pursuant to interagency agreements, the Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 30003 DOE contract audit agency is the in fact, they are only ‘‘distributed’’ by 20. Subsection 970.3102–17 is Defense Contract Audit Agency (DCAA); the Office of Policy. amended by revising paragraph (c)(2)(i) the Department of Health and Human 9. Subsection 942.705–4 is revised to and adding a new paragraph (c)(6). In Services (HHS) has audit cognizance for correct the statement that negotiated (c)(2)(i), line 1, the letter ‘‘s’’ is deleted most educational institutions. rates are maintained by the Office of from the word ‘‘Regulations’’ to reflect 3. Subparagraph 915.970–8(d)(1) is Policy, when, in fact, they are only the new title. New subparagraph (c)(6) revised to add a reference to the distributed by the Office. is added to reflect changes in FAR relocation of the CAS to FAR Appendix 10. Subsection 942.705–5 is revised to 31.205–46, ‘‘Travel costs’’ as a result of B (Federal Acquisition Circular (FAC) correct the statement that negotiated FAC 90–7 which provided for 90–12, August 31, 1992). rates are maintained by the Office of downward adjustments to the maximum 4. Subsection 931.205–18 is revised to Policy, when, in fact, they are only per diem rates when no lodging costs add the acronyms ‘‘IR&D’’ and ‘‘B&P’’ to distributed by the Office. are incurred or on partial travel days. 11. Subpart 942.10 is removed as a the title. The DEAR reference to the FAR 21. Subsection 970.7104–33 is revised result of concomitant changes to the is changed from (c)(3) to (c)(2), because to reflect the relocation of the Cost IR&D/B&P advance agreements (see item the FAR amendment (FAC 90–13, Accounting Standards, within the FAR, 4, foregoing). There is no longer a September 24, 1992) deleted FAR (c)(3). from Part 30 to Appendix B. Paragraph (c)(4) is deleted in its requirement to negotiate advance entirety, except for a portion of the first agreements; thus, the coverage is II. Procedural Requirements removed in its entirety. sentence of (c)(4) which was moved to A. Review Under Executive Order 12866 (c)(2). Also, FAC 90–13 replaced the 12. Subsection 942.7003–6 is revised requirement for separate advance to add the word ‘‘Administration’’ to the Today’s regulatory action has been agreements with temporary limits (for a title of FAR Part 30, which was changed determined not to be a ‘‘significant 3-year period) on allowable IR&D/B&P as a result of FAC 90–12, August 31, regulatory action’’ under Executive costs. DOE has chosen not to institute 1992. Additionally, the reference to Order 12866, ‘‘Regulatory Planning and the temporary limits, but rather to allow Public Law 91–379, which established Review,’’ (58 FR 51735, October 4, for full recovery, immediately. Thus, the the CAS, is deleted due to the 1993). Accordingly, this action was not text was amended to reflect the DOE subsequent incorporation of the CAS in subject to review under that Executive policy that generally IR&D costs are FAR Appendix B and their application Order by the Office of Information and allowable if reasonable, allocable, and to civilian agencies pursuant to Public Regulatory Affairs of the Office of they have a potential benefit or Law 100–679. Management and Budget (OMB). 13. Subsection 942.7004 is revised at relationship to the DOE program. B&P paragraph (a) to incorporate the results B. Review Under Executive Order 12778 costs are generally allowable if they are of the interagency agreements between reasonable and allocable. Section 2 of Executive Order 12778 the Office of Procurement and 5. Section 942.003, paragraph (a) is instructs agencies to adhere to certain Assistance Management and DCAA and revised to delete references to the requirements in promulgating new HHS. References to the DOE IG are Department of Defense (DOD) services; regulations and reviewing existing deleted. Paragraphs (b), (c), and (d) are the services no longer have individual regulations. These requirements, set deleted as they describe internal plant residencies. This revision reflects forth in Sections 2(a) and (b), include operating procedures that, in large part, the current DOD structure for contract eliminating drafting errors and needless are no longer valid. ambiguity, drafting the regulations to administration. 14. Subsection 951.7000 is revised to minimize litigation, providing clear and 6. Section 942.101 is amended by delete the reference to outdated General certain legal standards for affected deleting the reference to the Air Force Services Administration (GSA) Bulletin conduct, and promoting simplification Contract Management Division A–95. The reference to the Federal and burden reduction. Agencies are also (AFCMD) and the DOE IG in paragraphs Property Management Regulations instructed to make every reasonable (a)(2) and (c), respectively. The AFCMD (FPMRs) is sufficient. no longer exists and the Office of 15. Subsection 951.7001 is revised to effort to ensure that the regulation: Procurement and Assistance delete the reference to outdated GSA specifies clearly any preemptive effect; Management now negotiates the Bulletin A–95 in the introductory describes any administrative interagency agreements with DCAA and paragraph. Paragraphs (a), (b), and (c) proceedings to be available prior to HHS. Paragraph (a)(3) is redesignated as are deleted as they duplicate judicial review and any provisions for (a)(2) to accommodate the deletion of information contained in clause the exhaustion of such administrative AFCMD. 952.251–70. proceedings; and defines key terms. 7. Subsection 942.705–1 is revised at 16. Subsection 952.251–70 is DOE certifies that today’s rule meets the paragraph (a)(3) by deleting the amended to correct a referenced citation requirements of sections 2(a) and (b) of statement that a listing of business at paragraph (a) from ‘‘Property Executive Order 12778. units, for which DOE has final indirect Management Regulation (FPMR), C. Review Under the Regulatory cost rate negotiation responsibility, is Temporary Regulation A–30’’ to ‘‘Travel Flexibility Act published in the DOE Order System. Regulation (FTR), Part 301–15, Travel The listing is no longer published in the Management Programs.’’ This rule was reviewed under the DOE Order System. The revised 17. The authority citation for Part 970 Regulatory Flexibility Act of 1980, paragraph (b)(1) clarifies the is restated. Public Law 96–354, which requires proscription that contractors shall 18. Subsection 970.3001–1 is revised preparation of a regulatory flexibility neither be required nor directed to to reflect the relocation of the CAS, analysis for any rule which is likely to submit final indirect cost rate proposals within the FAR, from Part 30 to have significant economic impact on a to the auditor. Appendix B. substantial number of small entities. 8. Subsection 942.705–3 is revised to 19. Subsection 970.3001–2 is revised DOE certifies that this rule will not have correct the statement that negotiated to correct the cross reference from a significant economic impact on a rates are ‘‘centrally maintained’’ when, ‘‘970.3102–10’’ to ‘‘970.3102–3.’’ substantial number of small entities, 30004 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations and, therefore, no regulatory flexibility PART 915ÐCONTRACTING BY term ‘‘DOE program’’ encompasses the analysis has been prepared. NEGOTIATION DOE total mission and its objectives. B&P costs are recoverable under DOE D. Review Under the Paperwork 1. The authority citation for Parts 915, contracts to the extent they are Reduction Act 931, 942, and 951 continues to read as reasonable, allocable, and not otherwise No new information or recordkeeping follows: unallowable. requirements are imposed by this Authority: 42 U.S.C. 7254; 40 U.S.C. rulemaking. Accordingly, no OMB 486(c). PART 942ÐCONTRACT ADMINISTRATION clearance is required under the 2. Subsection 915.805–5 is amended Paperwork Reduction Act of 1980 (44 by revising paragraph (c)(1) to read as 5. Section 942.003 is amended by U.S.C. 3501, et seq.). set forth below: revising paragraph (a) as set forth below: E. Review Under the National 915.805±5 Field pricing support. 942.003 Organizational structure. Environmental Policy Act * * * * * (a) The Department of Defense has DOE has concluded that promulgation (c)(1) When an audit is required initiated a formal system of independent of this rule falls into a class of actions pursuant to 915.805–70, ‘‘Audit as an organizations responsible for which would not individually or aid in proposal analysis,’’ the request for performance of post-award management cumulatively have significant impact on audit shall be sent directly to the functions. A field structure of Contract the human environment, as determined Federal audit office assigned cognizance Administration Offices (CAO) by DOE’s regulations (10 CFR Part 1021, of the offeror or prospective contractor. responsible for contract management Subpart D) implementing the National When the cognizant agency is other than and administration of contracts for Environmental Policy Act (NEPA) of the Defense Contract Audit Agency or major defense contractors has been 1969 (42 U.S.C. 4321 et seq.). the Department of Health and Human established. DOD has organized plant Specifically, this rule is categorically Services, and an appropriate residencies of contract management excluded from NEPA review because interagency agreement has not been specialists for specific DOD contractors the amendments to the DEAR do not established, the need for audit and their various business units. The change the environmental effect of the assistance shall be coordinated with the Defense Logistics Agency performs rule being amended (categorical Office of Policy, within the contract management functions both at exclusion A5). Therefore, this rule does Headquarters procurement organization. onsite residencies of contractors and on not require an environmental impact * * * * * a mobile basis from centrally located statement or environmental assessment 3. Section 915.970–8(d) is amended management areas for other defense pursuant to NEPA. by revising paragraph (d)(1) contractors. A complete listing of the F. Review Under Executive Order 12612 introductory text to read as set forth DOD contract administration service below: components is contained in the Defense Executive Order 12612 (52 FR 41685, Directory cited in (FAR) 48 CFR 42.102. October 30, 1987), requires that 915.970±8 Weighted guidelines application * * * * * regulations, rules, legislation, and any considerations. 6. Section 942.101 is amended by other policy actions be reviewed for any * * * * * removing paragraph (a)(2); redesignating substantial direct effects on States, on (d) Capital investment (facilities). (1) paragraph (a)(3) as (a)(2); and revising the relationship between the National This element relates to the paragraph (c) to read as follows: Government and the States, or in the consideration to be given in the profit distribution of power and objective in recognition of the 942.101 Policy. responsibilities among the various investment risk associated with the * * * * * levels of Government. If there are facilities employed by the contractor. (c) The Department of Energy has sufficient substantial direct effects, then Measurement of the amount of facilities executed memoranda of understanding the Executive Order requires the capital employed is discussed in (FAR with the Defense Contract Audit Agency preparation of a federalism assessment Appendix B) 48 CFR 9904.414. Five to and the Office of Audit of the to be used in all decisions involved in twenty percent of the net book value of Department of Health and Human promulgating and implementing a facilities capital allocated to the contract Services to provide audit support policy action. This rule revises certain is the normal range of weight for this service to the DOE in support of its policy and procedural requirements. profit factor. The key factors that the procurement mission. Procedures for States which contract with DOE will be negotiating official shall consider in acquiring these services are discussed in subject to this rule. However, DOE has evaluating this factor are: 942.70. 7. Subsection 942.705–1 is revised to determined that this rule will not have * * * * * a substantial direct effect on the read as follows: institutional interests or traditional PART 931ÐCONTRACT COST 942.705±1 Contracting officer functions of the States. PRINCIPLES AND PROCEDURES determination procedure. List of Subjects in 48 CFR Parts 915, 4. Subsection 931.205–18 is revised to (a)(3) The Department of Energy shall 931, 942, 951, 952, and 970 read as follows: use the contracting officer Government procurement. determination procedure for all business 931.205±18 Independent research and units for which it shall be required to Richard H. Hopf, development (IR&D) and bid and proposal negotiate final indirect cost rates. A Deputy Assistant Secretary for Procurement (B&P) costs. listing of such business units is and Assistance Management. (c)(2) IR&D costs are recoverable maintained by the Office of Policy, For the reasons set out in the under DOE contracts to the extent they within the Headquarters procurement preamble, Chapter 9 of Title 48 of the are reasonable, allocable, not otherwise organization. Code of Federal Regulations is amended unallowable, and have potential benefit (b)(1) Pursuant to (FAR) 48 CFR as set forth below. or relationship to the DOE program. The 52.216–7, Allowable Cost and Payment, Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 30005 contractors shall be requested to submit making recommendations to the 15. Section 951.7001 is revised to read their final indirect cost rate proposals contracting officer as to whether the as follows: reflecting actual cost experience during CAS disclosure statement, submitted by the covered periods to the cognizant the contractor as a condition of the § 951.7001 General policy. contracting officers responsible for contract, adequately describes the actual Contracting officers will encourage negotiating their final indirect rates. The or proposed cost accounting practices DOE cost-reimbursable contractors DOE negotiating official shall request all and is in compliance with the Cost (CRCs) to use Government travel needed audit service in accordance with Accounting Standards required under discounts to the maximum extent the procedures in 942.70, Audit the terms of the contract. The practicable in accordance with Services. contracting officer shall request the contractual terms and conditions. 8. Subsection 942.705–3 is revised to auditor to review all Disclosure Vendors providing the service may read as follows: Statements submitted by a contractor or require that Government contractor potential contractor. employees furnish a letter of 942.705±3 Educational institutions. 13. Section 942.7004 is revised to read identification signed by the authorizing (a)(2) The negotiated rates established as follows: contracting officer. Contracting officers for the institutions cited in OMB shall provide CRCs with a ‘‘Standard Circular No. A–88 are distributed, to the 942.7004 Procedures. Letter of Identification’’ when Cognizant DOE Office (CDO) assigned The Department of Energy appropriate to do so. An example of a lead office responsibility for all DOE Headquarters procurement organization ‘‘Standard Letter of Identification’’ is at indirect cost matters relating to a has established formal interagency 952.251–70(e). particular contractor, by the Office of arrangements with the Defense Contract Policy, within the Headquarters Audit Agency (DCAA) and the PART 952ÐSOLICITATION procurement organization. Department of Health and Human PROVISIONS AND CONTRACT 9. Subsection 942.705–4 is revised to Services, Office of Inspector General. CLAUSES read as follows: Audits are available to contracting 16. The authority citation for part 952 942.705±4 State and local governments. officers pursuant to terms of these continues to read as follows: arrangements. DCAA, as the DOE A list of cognizant agencies for State/ Authority: 42 U.S.C. 7254; 40 U.S.C. cognizant auditor, is responsible for 486(c); 42 U.S.C. 13524. local government organizations is performing audits, when requested, for periodically published in the Federal all DOE prime contractors and DOE 16a. Subsection 952.251–70 is Register by the Office of Management Management and Operating contractors’ amended by revising paragraph (a) of and Budget (OMB). The responsible subcontractors, except where another the clause to read as follows: agencies are notified of such agency has cognizance of a contractor. assignments. The current negotiated 952.251±70 Contractor employee travel HHS, for example, has contract audit discounts. rates for State/local government cognizance for most educational * * * * * activities are distributed to each CDO by institutions. the Office of Policy, within the (a) Contracted airlines. Airlines participating in travel discounts are listed in Headquarters procurement organization. PART 951ÐUSE OF GOVERNMENT the Federal Travel Directory (FTD), 10. Subsection 942.705–5 is revised to SOURCES BY CONTRACTORS published monthly by the General Services read as follows: Administration (GSA). Regulations governing 14. Section 951.7000 is revised to read the use of contracted airlines are contained 942.705±5 Nonprofit organizations other as follows: in the Federal Travel Regulation (FTR), 41 than educational and state and local CFR Part 301–15, Travel Management governments. 951.7000 Scope of subpart. Programs. It stipulates that cost-reimbursable OMB Circular A–122 establishes the The General Services Administration contractor employees may obtain discount air rules for assigning cognizant agencies (GSA) and, in some cases, the fares by use of a Government Transportation for the negotiation and approval of Department of Defense (DOD) Military Request (GTR), Standard Form 1169, cash or indirect cost rates. The Federal agency Traffic Management Command negotiate personal credit cards. When the GTR is used, with the largest dollar value of awards agreements with commercial contracting officers may issue a blanket GTR (contracts plus Federal financial for a period of not less than two weeks nor organizations to provide certain more than one month. In unusual assistance dollars) will be designated as discounts to contractors traveling under circumstances, such as prolonged or the cognizant agency. There is no Government cost-reimbursable international travel, the contracting officer published listing of assigned agencies. contracts. In the case of discount air may extend the period for which a blanket The Office of Policy, within the fares and hotel/motel room rates, the GTR is effective to a maximum of three Headquarters procurement organization, GSA has established agreements with months. Contractors will ensure that their distributes to each CDO the rates certain airlines and thousands of hotels/ employees traveling under GTR provide the established by the cognizant agency. motels to extend discounts which were GTR number to the contracted airlines for previously only available to Federal entry on individual tickets and on month-end billings to the contractor. Subpart 942.10 [Removed] employees on official travel status. DOD * * * * * 11. Subpart 942.10 (including has negotiated agreements with car 942.1004 and 942.1008) is removed. rental companies for special rates with PART 970ÐDOE MANAGEMENT AND 12. Subsection 942.7003–6 is revised unlimited mileage which were also to be OPERATING CONTRACTS to read as follows: used by only Federal employees on official Government business. GSA 17. The authority citation for part 970 942.7003±6 CAS disclosure statements. Federal Property Management continues to read as follows: The audit activity is available and, in Regulations (FPMRs) make these three Authority: Sec. 161 of the Atomic Energy accordance with (FAR) 48 CFR part 30, travel discounts available to Act of 1954 (42 U.S.C. 2201), sec. 644 of the Cost Accounting Standards Government cost-reimbursable Department of Energy Organization Act, Administration, is responsible for contractors at the option of the vendor. Public Law 95–91 (42 U.S.C. 7254). 30006 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 18. Subsection 970.3001–1 is revised DEPARTMENT OF TRANSPORTATION Highway Traffic Safety Administration, to read as follows: Room 5220, 400 Seventh Street, SW., National Highway Traffic Safety Washington DC, 20590. 970.3001±1 Applicability. Administration FOR FURTHER INFORMATION CONTACT: Mr. Jere Medlin, Office of Vehicle Safety The provisions of (FAR) 48 CFR part 49 CFR Part 571 30 and (FAR Appendix B) 48 CFR Standards, NRM–15, National Highway 9904.414 shall be followed for [Docket No. 1±21, Notice 13] Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC, management and operating contracts. RIN 2127±AE99 20590. Telephone: (202) 366–5276. 19. Subsection 970.3001–2 is revised to read as follows: Federal Motor Vehicle Safety SUPPLEMENTARY INFORMATION: Standards Theft Protection The Mazda Petition 970.3001±2 Limitations. AGENCY: National Highway Traffic Background Cost of money as an element of the Safety Administration (NHTSA), cost of facilities capital (CAS 414) and Department of Transportation (DOT). On May 30, 1990, NHTSA amended Federal Motor Vehicle Safety Standard as an element of the cost of capital ACTION: Final rule. assets under construction (CAS 417) is No. 114, Theft Protection, to protect not recognized as an allowable cost SUMMARY: This rule makes a temporary against injuries to children caused by the rollaway of unattended automatic under contracts subject to 48 CFR part change in the requirement of Standard transmission vehicles in which children 970 (See 970.3102–3). No. 114, Theft Prevention, that vehicles with automatic transmissions be were able to shift the transmission. 55 20. Subsection 970.3102–17 is equipped with a transmission lock that FR 21868. The amendment required amended by revising paragraph (c)(2)(i) prevents key removal unless the automatic transmission vehicles with a and by adding paragraph (c)(6) to read transmission is locked in park or ‘‘park’’ position to have a key-locking as follows: becomes locked in park as a direct result system that prevents removal of the key unless the transmission is locked in 970.3102±17 Travel costs. of removing the key. The purpose of this requirement is to prevent rollaway ‘‘park’’ or becomes locked in ‘‘park’’ as * * * * * crashes caused by unattended children the direct result of removing the key. (c) * * * pulling the transmission lever out of The amendment was intended to ensure that the automatic transmissions of (2) * * * park. Due to apparent confusion concerning the scope of the requirement unattended parked vehicles cannot be (i) Federal Travel Regulation and the effect of that confusion on shifted by a child. The amendment prescribed by the General Services transmission designs, the requirement became effective on September 1, 1992. Administration, for travel in the will be changed until September 1, On June 21, 1990, NHTSA denied a conterminous 48 United States. 1996. Until that time, the transmission petition for rulemaking from Mr. W. A. Barr. Mr. Barr had requested that the * * * * * lock will only be required to prevent key removal when the transmission is agency amend the standard to require (6)(i) The maximum per diem rates manufacturers to design transmissions referenced in paragraph (c)(2) of this fully engaged in a detent position other than park (e.g., reverse, neutral, drive). that assure that the parking pawl (a section generally would not constitute a ‘‘tooth’’ that fits into a transmission gear After that date, the requirements will reasonable daily charge: to prevent it from turning) engages revert to their previous form, when the driver puts the shift lever in (A) When no lodging costs are prohibiting key removal in all positions park. He believed that transmission incurred; and/or other than park. designs of Ford and other manufacturers This rule also corrects, by technical (B) On partial travel days (e.g., same generate a ‘‘back pressure’’ on the shift amendment, an error in the language of day of departure and return). lever that pushes the lever out of park the provision that permits transmission and toward reverse. To counter that (ii) Appropriate downward lock override devices to facilitate towing force, the driver has to pull the shift adjustments from the maximum per disabled vehicles. The existing language lever ‘‘sideways’’ into a slot to assure diem rates would normally be required inadvertently requires steering lock-up that the lever does not spontaneously under these circumstances. While these even for vehicles whose override move out of park and into reverse. Mr. adjustments need not be calculated devices are operated by the vehicle key. Barr considered these designs defective pursuant to the Federal Travel Requiring steering column lock-up on because they place the responsibility for Regulation, Joint Travel Regulations, or automatic transmission locks with a key assuring that the shift lever is ‘‘locked’’ Standardized Regulations, they must operated override device would not in park on the driver. He referred to the result in a reasonable charge. provide added protection against theft situation in which the driver does not since the key that would operate the 21. Subsection 970.7104–33 is revised properly place the shift lever in park as device would also unlock the steering. to read as follows: ‘‘mispositioning.’’ The technical amendment excludes In its denial of Mr. Barr’s petition, 970.7104±33 Cost Accounting Standards. these vehicles from the steering lock-up NHTSA stated ‘‘[w]ithout data requirement. The provisions of (FAR) 48 CFR 30 suggesting current Federal motor and (FAR Appendix B) 48 CFR 9904.414 DATES: This rule is effective July 7, vehicle safety standards are allowing or shall apply to purchases by management 1995. Petitions for reconsideration of not addressing an unreasonable safety and operating contractors. this rule must be received no later than risk, the agency will not commence July 7, 1995. [rulemaking].’’ The agency also stated [FR Doc. 95–13436 Filed 6–6–95; 8:45 am] ADDRESSES: Petitions for reconsideration ‘‘the agency’s review of available data BILLING CODE 6450±01±P should refer to the docket number and on incidents of inadvertent vehicle notice number and be submitted in movement indicated that the potential writing to: Administrator, National for this problem is relatively small.’’ In Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 30007 justifying the denial, the agency made the standard fails to satisfy the Summary of Comments to Notice of no mention of the previous month’s requirement of 49 U.S.C. 30111(a) that Proposed Rulemaking amendment. That amendment standards ‘‘be stated in objective terms.’’ Industry commenters supported the addressed his concern to a limited On March 14, 1994, in response to proposed change to the transmission extent, i.e., it prevented key removal Mazda’s petition, NHTSA issued a locking requirements, without when the transmission is not locked in Notice of Proposed Rulemaking (NPRM) explaining their reasons for doing so. park for whatever reason, including proposing to amend Standard No. 114 to Mazda stated only that the proposed mispositioning. prevent key removal only when the shift requirements were sufficiently In a November 20, 1992 letter to Ford, lever is fully placed in any designated objective. Chrysler agreed that the less NHTSA declined to adopt a request by shift position other than park. In issuing stringent transmission lock that company to interpret Standard No. the notice, NHTSA rejected Mazda’s requirements in the NPRM provide 114 as prohibiting key removal only ‘‘lack of objective test procedure’’ greater flexibility for the manufacturers, when the transmission shift lever is in argument because the requirements but found it ‘‘difficult to imagine one of the available gear positioning were clear on their face, but found mechanical systems’’ designed to detents other than park, i.e., reverse, prevent key removal only at detent neutral, drive, first, or second, and thus reason to reexamine the rule on other grounds. positions. However, Chrysler did ‘‘not not when the lever is at points between object’’ to the rulemaking. those detents. The agency stated that In the NPRM, the agency tentatively The industry commenters all shared Key removal must be prevented in all concluded that the safety implications two objections to the proposed rule. The circumstances save those specified in S4.2.1. of the proposal were nonexistent or first resulted from the NPRM’s Neither the transmission nor the minuscule. For those noncomplying substitution of the word ‘‘or’’ for ‘‘and’’ transmission shift lever is locked in ‘‘park’’ vehicles that required a deliberate effort in S4.2.1(a). The existing requirement in when the lever is between the gear selector to defeat the transmission shift lock, that paragraph states ‘‘. . . shall prevent positioning detents. there would be no safety consequences removal of the key unless the After issuing the interpretation letter, from the adoption of the proposal, since transmission or transmission shift lever NHTSA conducted compliance testing there was no reason to believe that is locked in ‘park’. . .’’ (emphasis for Standard No. 114 and discovered drivers would make such a deliberate added). Ford, GM, and Chrysler objected apparent noncompliance with the effort. For those noncomplying vehicles to the NPRM’s change in the transmission-locking requirement in that would allow the driver to conjunctive language of S4.2.1(a)(1) vehicles of several manufacturers. inadvertently move the shift lever into from ‘‘or’’ to ‘‘and’’ because it requires NHTSA sent letters of notification of what appeared to be the park position lockup of both the transmission and the apparent noncompliance to Ford, and remove the key when the lever is shift lever, rather than only one or the Honda, GM, Suzuki, Hyundai, and not actually in park—referred to as a other. Ford believed that this change Mazda. In its letter to Mazda, the agency ‘‘misshift’’—the agency tentatively was inadvertent because NPRM’s enclosed a copy of the November 1992 concluded that the safety impacts would preamble did not reflect a desire to interpretation letter it had sent to Ford. be ‘‘minuscule.’’ This is because two require manufacturers to change current On February 2, 1993, Mazda rare events (the driver inadvertently designs. Instead, it indicated an intent submitted a petition for rulemaking moving the shift lever to a position just to provide manufacturers with greater requesting that the agency amend the short of park and a child subsequently flexibility. Ford stated that locking both provision added by the May 1990 final playing with the shift lever) would have the transmission and the shift lever rule by revising the compliance test to coincide for a rollaway accident to would require design changes. GM procedure so that it would provide for occur. stated that the added requirement was testing for the possibility of key removal The NPRM proposed a compliance unnecessary and implied that it was only when the transmission lever was in test procedure that would define impractical, because shifting into park any of the detent positions. Mazda said may initially only position the parking whether the vehicle was ‘‘fully placed’’ that the procedure was needed to clarify pawl on the top of a tooth of the in the various shift positions and the requirement to make the compliance planetary carrier, and that further whether it was ‘‘locked in ‘park’.’’ For test procedure ‘‘objective.’’ vehicle movement may be necessary to the shift lever to be regarded as ‘‘fully In its petition, Mazda characterized permit pawl engagement in a slot placed’’ in one of the detent positions, the agency’s November 1992 between the teeth. Chrysler believed interpretation as permitting ‘‘intentional the NPRM provided that position would locking either the transmission or the mispositioning’’ of the transmission have to be displayed on the shift lever is adequate to protect against shift lever during compliance testing. transmission gear selection indicator injuries. Mazda argued that the rulemaking and the vehicle would have to respond Ford, GM, and Chrysler also urged the record did not indicate that the agency in a certain way to confirm that the agency to increase the amount of vehicle ever contemplated guarding against transmission was actually in the movement (100 mm) that is permitted in what that company terms ‘‘intentional indicated detent position. ‘‘Fully placed the compliance procedure before the mispositioning’’ of the transmission in park’’ was defined as being when the vehicle is considered to have shift lever. Mazda argued that during its vehicle does not roll away (‘‘rollaway’’ experienced ‘‘rollaway.’’ Ford stated design and development of the vehicles being defined as moving more than 100 that a small percentage of ‘‘light truck which were the subject of the agency’s mm) on a 10 percent grade after the type vehicles with large tires’’ may testing, it never understood ‘‘intentional parking brake is released. ‘‘Fully placed travel slightly more than 100 mm, and mispositioning’’ to be a reasonable and in neutral’’ was defined as being when suggested increasing the distance to 150 legitimate compliance test condition activation of the accelerator pedal does mm. Chrysler also suggested 150 mm as under Standard No. 114. Mazda also not cause the car to move. ‘‘Fully placed an appropriate distance. argued that, by not specifying what that in a forward or reverse drive position’’ GM objected even more strongly to company termed as an objective test was defined as being when the vehicle the 100 mm rollaway definition. GM procedure for determining compliance, can be driven under its own power. commented that the compliance test 30008 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations procedure for rollaway is unnecessarily situation, although it is unclear whether might result in an additional 50–100 stringent and impracticable. Because of the vehicle was equipped with a child injuries annually. the many different combinations of axle transmission lock. Advocates also faulted NHTSA for not ratios, transmission and suspension Mr. Ralph Hoar, of Ralph Hoar and providing any information on the designs, and tire sizes that have to be Associates, asserted that NHTSA files number of different kinds of accommodated, GM suggests deleting reveal ‘‘numerous recalls by many transmissions that would have to be the distance limit altogether. Rather manufacturers for shift indicator redesigned, or the costs of doing so. It than selecting an ‘‘arbitrary’’ distance, misalignment or problems with the shift stated that if transmission redesign were GM stated ‘‘park’’ should be defined as mechanism that would mislead the enormously burdensome, manufacturers being when the vehicle becomes operator into believing that they had would not have improved from stationary within five seconds of selected the intended gear.’’ He approximately 69 percent compliance in releasing the parking brake. GM concluded that, if vehicle operators are mid-1990 to the 1993 level of well over recommended that, if NHTSA insists on being misled about the transmission 90 percent compliance in just two years. using a distance, the distance be position, it follows that the transmission Advocates concluded that NHTSA has increased from 100 mm to at least 400 may be between gears. An operator who provided no economic argument to mm. GM stated that this is necessary to can remove the key in such a situation support the NPRM. account for extreme situations, such as would be falsely led to believe that the Finally, Advocates asserted that vehicles with tires greater than 30 vehicle is secured. He states that this NHTSA conducted this rulemaking inches in diameter, which GM history of recalls and complaints merely to bring the manufacturers into calculates may require up to 40 degrees indicates it is not in the interest of compliance and to avoid the costs of of rotation to fully engage the parking safety to allow misshifts. redesigning defective transmissions. It Advocates for Highway and Auto pawl and eliminate gear lash. Without suggested that NHTSA address Safety’s (Advocates) main argument was explaining why, GM also stated that a noncompliances using existing that the agency has no idea of the 10 percent grade was unnecessarily procedures and not allow magnitude of the safety benefits that it steep and suggested a 2–3 percent grade misinterpretations of its standards to is eliminating in this rulemaking. instead. cause it to ‘‘roll back’’ safety protection. A number of lawyers and a consumer Advocates stated that NHTSA has not Advocates stated that the current safety advocacy group commented that produced any data to support the standard is clear, as outlined in changing the standard as proposed in NPRM’s conclusion that the chance of NHTSA’s interpretation letter to Ford, the NPRM would be detrimental to misshifting is small, or that the chance and that the NPRM represents an motor vehicle safety. Many of them of misshifting coupled with horseplay improper use of rulemaking authority. offered examples of specific crashes that on the part of children is remote. they believed would be permitted under Advocates quoted the 1990 final rule as Agency Analysis of Issues and the relaxed standard. Some of these asserting that the existing requirement Adoption of Final Rule crashes may be attributable to provides ‘‘absolute assurance’’ of After carefully considering the public misshifting. transmission lock after key removal. Mr. Robert Palmer, a Missouri Advocates asserted that ‘‘[t]he agency is comments, NHTSA has decided to attorney, stated that he handled a obligated to determine the extent of the temporarily, instead of permanently, ‘‘string of cases’’ in the 1980’s in which probable exposure, and the degree of reduce the stringency of the he said Ford’s defective transmission risk, to which children will be newly transmission locking requirement. locks allowed the driver to ‘‘place the exposed prior to amending the rule Simply replacing the existing vehicle in what he thought was ‘Park’ * * *’’ requirement with the proposed one is and then the vehicle would move into Advocates noted that the 1990 Final not appropriate. Vehicles manufactured ‘Reverse’.’’ These are misshift situations. Regulatory Evaluation (FRE) before September 1, 1996 will be subject He appeared to believe that NHTSA is acknowledged a ‘‘special obligation’’ to to a requirement along the lines of the rescinding the transmission lock reduce crashes involving children, and proposal. Vehicles manufactured on or requirement altogether, and objected expressed the opinion that this may after that date will be subject to the because it is saving ‘‘countless’’ lives. make it worth maintaining the existing slightly more stringent requirement Mr. Victor Fleming, an Arkansas rule and requiring the involuntary originally adopted by the agency in May lawyer, wrote about another misshift redesign of some vehicle transmissions. 1990. The rationale for this decision is accident. He believed that the standard A related argument of Advocates was set forth in greater detail below. fails to address the issue of that the magnitude of the safety problem The agency concludes that a change ‘‘unsuspecting adults’’ causing rollaway is likely much larger than NHTSA’s in the locking requirement is necessary accidents. He also appeared to believe estimates because the number of because of the consequences of that NHTSA is rescinding the noncompliant vehicles exceeds confusion in the industry about the transmission lock requirement. NHTSA’s figures. Advocates stated that original requirement. The confusion was Mr. Kenneth Obenski, president of a the 1990 FRE predicated its estimate of apparently engendered in part by an firm that investigates accidents for 50–100 child injuries prevented per year event that occurred shortly after the insurers and litigants, stated that 0.5 on the assumption that only 4 percent, issuance of the May 1990 final rule, i.e., percent of the accidents that his firm or 470,000, of the 1987 vehicles were the agency’s June 1990 denial of a has investigated involved vehicles not in compliance. Advocates stated petition for rulemaking by Mr. W.A. parked but inadequately secured by that 40 percent more, or 668,000 Barr concerning misshifting of drivers. Some of these accidents may be vehicles in 1993 permit misshifts. transmissions. The industry apparently caused by misshifts. Advocates argued that this increased read these nearly contemporaneous Mr. John Stilson, a consulting safety exposure will be repeated annually and decisions together to indicate that the and automotive engineer, is engaged as even increased if more manufacturers agency had not intended to address any an expert on behalf of a woman injured decide to start producing transmission aspect of the misshift problem in the after her Mazda rolled over her. The locks that permit misshifting. Advocates May 1990 rulemaking on Standard No. accident apparently involved a misshift estimated that the NPRM, if adopted, 114. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 30009 While the agency issued an NHTSA believes that the brief rule), the agency notes that its analysis interpretation in November 1992 duration of less stringent transmission would not have changed markedly had clarifying the reach of the May 1990 lock requirement will minimize the it used Advocates’ higher estimate. Most final rule, that interpretation did not possibility of any adverse safety impacts of the benefits projected in the 1990 rule eliminate the practical consequences of from this rulemaking. As already noted, are already being achieved since they the industry’s confusion, since the nearly all manufacturers are now in are associated with the addition of a manufacturers could not immediately compliance with the more stringent transmission lock. Transmission locks comply with it. The agency’s efforts to requirements. The duration of the more have been added to all cars equipped address those consequences led it to limited requirement is so short that it with automatic transmissions. Thus, grant Mazda’s petition for rulemaking would not be worthwhile for vehicle benefits are being obtained even from and to take the more fundamental step manufacturers to redesign transmissions those vehicles that do not satisfy the of reexamining the rationale for the to allow misshifting for only a year. The more stringent requirements. Moreover, agency’s adoption of the requirement. agency believes that manufacturers will as stated above, any potential That reexamination led to the agency’s respond to this notice by quickly degradation of safety is marginal issuing the March 1994 NPRM redesigning any remaining because their current transmission locks proposing a more limited requirement to transmissions that do not comply with allow misshifting events only under address rollaway incidents, on the the future requirements. very rare circumstances. ground that the misshift aspect of the NHTSA believes that its decision to In summary, the agency believes that rollaway problem might be too small to adopt the less stringent requirement on twin goals of addressing the legacy of address at all. Final adoption of the a temporary, short-term basis renders the industry’s confusion and securing proposal would have eliminated the moot all or most of the commenters’ the benefits of the existing requirement practical consequences of the confusion. concerns about a possible loss of safety can be most reasonably achieved by The agency is changing the benefits. As indicated above, some allowing vehicles manufactured before transmission locking requirement on commenters argued that the agency September 1, 1996 to meet the more only a temporary basis because a lacked any basis for saying that the limited requirements proposed in the relatively short-term change is sufficient safety risks associated with misshifts March 1994 NPRM and requiring to eliminate consequences of confusion was such a small part of the rollaway vehicles manufactured on or after that within the industry over the extent of problem. They further argued that date to meet the slightly more stringent the original requirement. Nearly all NHTSA had underestimated the requirement originally adopted by the manufacturers have told NHTSA in noncompliant portion of the vehicle agency in May 1990. NHTSA believes that there are response to noncompliance population being produced annually. They also suggested that the essentially no costs associated with this investigation letters that they are now in noncompliant vehicle population might final rule. The only relevant costs are compliance with the more stringent increase. The agency notes that those those associated with the May 1990 requirements. Considering the relatively concerns were expressed in response to final rule which will be temporarily minor nature and expense of the the proposed permanent change in the suspended and then reinstated on necessary design changes, the agency requirement. September 1, 1996. The basic cost is concludes that the relatively few NHTSA notes further that its analysis related to the addition of a transmission remaining vehicles that do not satisfy of the original May 1990 final rule shift lever lock. Such a lock is needed the more stringent requirement can be indicated that installation of the to meet either the more limited, modified to do so by September 1, 1996. required technology in its estimate of temporary requirement or the more An additional consideration leading the number of the cars and light trucks stringent, permanent requirement. For the agency to make the change a not voluntarily equipped by the vehicles which currently meet only the temporary one is that while it believes standard’s effective date would prevent more limited requirement, some minor the difference in safety benefits between an estimated 50 to 100 child-injuring design changes will be needed in the the existing requirement and the less rollaway accidents annually. While the lock to meet the more stringent stringent temporary one is small, agency cannot provide a precise requirement when it again becomes eliminating even the small possibility of estimate of the extent to which these effective. By providing over one year of misshift-induced rollaway is justified benefits could have been reduced by leadtime before the broader requirement because the likely beneficiaries are permanently adopting the proposed must be met, those residual costs of the children, which the agency has more limited requirement, NHTSA May 1990 final rule will be minimized. historically taken special care to protect. believes that it would have been small. The agency agrees with the industry NHTSA observes that the rollaway This is because any such reduced child commenters that the change of the accidents at issue that could arise from injury prevention benefits would occur conjunctive ‘‘or’’ to ‘‘and’’ in S4.2.1(a) misshifting are a part of the problem the only in the rare combination of events was not necessary and that locking agency was intending to address in the described above, and only for the few either the transmission shift lever or the earlier rulemaking, i.e., crashes resulting vehicles still in noncompliance with the transmission itself, will have the same from the rollaway of parked vehicles existing requirement. Regarding practical effect. Therefore, the with automatic transmissions as a result Advocates’ comment that the agency regulatory text has been corrected to of children moving the shift mechanism does not have enough information on make it clear that locking of either the out of the ‘‘park’’ position. Apart from the costs and benefits of this rule, transmission or the shift lever is the issue of dealing with the legacy of NHTSA notes that it has provided sufficient, provided this action prevents the industry’s confusion, there is no estimates within the limits of available vehicle rollaway. reason to single out this part of the data. NHTSA also agrees that the NPRM’s problem for special treatment. Indeed, In response to Advocates’ charge that ‘‘rollaway’’ definition of more than 100 this part of the problem is addressed by the agency underestimated the mm of vehicle movement is the same basic countermeasure as the noncompliant portion of the fleet, unnecessarily restrictive. However, it rest of the problem, i.e., a transmission thereby also underestimating the cannot agree to allow an unspecified shift lever lock. benefits in 1990 (and the costs of this amount of movement, or up to 400 mm 30010 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations of movement, as GM suggests. GM’s 400 regulatory language of S4.2.2 required not satisfy the more stringent mm figure is a worst-case estimate of steering lockup for any override device, requirements is likely to be much how far certain trucks might roll. This including those operated by a key. smaller than the 668,000 vehicles that larger amount of movement would be On March 22, 1994, NHTSA received the NPRM estimated, based on more likely to create the possibility of a petition for rulemaking from Mr. manufacturer responses to NHTSA’s trapping children and adults under the Gerald Gannon of GM’s legal staff, investigation. NHTSA cannot quantify car than would lesser amounts of suggesting that the words ‘‘provided how much smaller the portion is now movement. It is unclear to this agency that steering is prevented when the key because it has not conducted any recent why GM products cannot satisfy the 150 is removed’’ were misplaced in the compliance testing. Due to the probable mm criterion suggested by Ford and regulatory text. He correctly assumed minimal cost of compliance per vehicle Chrysler. Therefore, to account for some that NHTSA did not intend to require and the small number of vehicles amount of ‘‘play’’ in U-joints, the steering lockup for override devices affected, NHTSA believes that the amount of gear lash in transmissions, operated by a key. Indeed, moving these remaining costs of the 1990 rule are transfer cases, and differentials, plus the words as GM suggests produces the insignificant. fact that a vehicle may have to roll intended result. Since this final rule does not increase slightly to completely engage the There is adequate cause to amend the costs or provide any cost savings, a full parking pawl, NHTSA has increased the rule, pursuant to the GM petition, using regulatory evaluation is not warranted. amount of permissible roll to 150 mm. only a technical amendment. The Regulatory Flexibility Act NHTSA does not agree with GM’s preamble of the 1990 rule, which comment that the 10 percent grade addresses steering locks for keyless NHTSA has also considered the specification in the test procedure is override devices only, supports the effects of this regulatory action under unnecessarily steep, and has retained suggestion that an error was made in the the Regulatory Flexibility Act. I hereby the specification in the final rule. The regulatory text of the January 1992 final certify that this rule will not have a agency notes that the grade level rule. The focus of that preamble significant economic impact on a differential associated with the indicates that key-operated override substantial number of small entities. transmission grade holding ability in devices were not intended to be covered The vehicle manufacturers affected by S7.7 of the parking brake test in by the restriction. Moreover, it is the requirements typically do not Standard No. 105, Hydraulic Brake illogical from an anti-theft perspective qualify as small businesses. Further, Systems, is 10 percent. That test to require steering lockup in a vehicle since no price changes should be requires the vehicle to hold on a 20 when the transmission lock override associated with this rule, small percent grade with the parking brake device itself is operated by the key that businesses, small organizations and and on a 30 percent grade with the would unlock the steering anyway. small governmental entities will not be automatic transmission in ‘‘park’’ and Thus, with evidence in the record that affected in their capacity as purchasers with the parking brake on. NHTSA the word placement was in error and of new vehicles. notes that the vehicle-on-grade test with the existing requirement being Executive Order 12612 (Federalism) specified in this rule is not intended to illogical, a technical amendment is verify the performance of the holding appropriate. Notice and comment The agency has analyzed this rule in capability already required of vehicles procedures are not necessary. accordance with the principles and in Standard No. 105, but to verify that criteria set forth in Executive Order the transmission is operating in a Rulemaking Analyses and Notices 12612. NHTSA has determined that this vehicle holding mode. Executive Order 12866 and DOT rule does not have sufficient federalism implications to warrant the preparation The GM Petition Regulatory Policies and Procedures of a Federalism Assessment. In response to comments about the NHTSA has considered the impacts of need to move disabled vehicles, the this rulemaking action under E.O. 12866 Civil Justice Reform agency amended Standard No. 114 on and the Department of Transportation’s This rule does not impose any March 26, 1991 to permit a key-operated regulatory policies and procedures. This retroactive burdens. Under 49 U.S.C. override device which would allow the action has been determined to be not 30103, whenever a Federal motor transmission to be moved from park ‘‘significant’’ under either. As explained vehicle safety standard is in effect, a after key removal. The final rule did not above, the amendments would impose state may not adopt or maintain a safety require steering lock-up to occur as a no new requirements but would standard applicable to the same aspect result of using the override device. In temporarily provide additional of performance which is not identical to response to petitions for flexibility to manufacturers, with the Federal standard, except to the reconsideration, on January 17, 1992, respect to transmission shift lock extent that the state requirement the agency again amended the rule to designs, with no measurable impact on imposes a higher level of performance permit override devices operated by safety or costs. No manufacturer of and applies only to vehicles procured means other than the key. In allowing vehicles that satisfy the preexisting for the State’s use. 49 U.S.C. § 30161 keyless override devices, the preamble requirements is likely to redesign its sets forth a procedure for judicial review stated that the agency would require transmissions in response to this rule. of final rules establishing, amending or that steering lock-up occur as a result of The cost of making the minor changes revoking Federal motor vehicle safety using keyless override devices. The to the few transmission locks that are standards. That section does not require lock-up would act as a theft deterrent. still being produced not in compliance submission of a petition for The preamble concluded ‘‘the agency with the existing rule is likely to be a reconsideration or other administrative emphasizes that the amendment permits small but undeterminable fraction of the proceedings before parties may file suit a keyless emergency override only if cost of adding transmission locks. in court. theft protection is ensured by a steering NHTSA notes that these costs are lock’’ (58 FR 12467). However, while attributable to and were already counted List of Subjects in 49 CFR Part 571 the preamble discussed steering lockup in the 1990 rule. As stated earlier, the Imports, Motor vehicle safety, Motor only for keyless override devices, the portion of the fleet that currently does vehicles. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations 30011 In consideration of the foregoing, 49 S4.2.2(a) Notwithstanding S4.2.1, or transmission is locked in ‘‘park.’’ CFR part 571 is amended as follows: provided that steering is prevented Verify that vehicle movement was less upon the key’s removal, each vehicle than or equal to 150 mm after release of PART 571ÐFEDERAL MOTOR specified therein may permit key the service brakes. VEHICLE SAFETY STANDARDS removal when electrical failure of this S5.3 Test procedure for vehicles 1. The authority citation for part 571 system (including battery discharge) manufactured on or after September 1, continues to read as follows: occurs or may have a device which, 1996. when activated, permits key removal. (a) Move the transmission shift Authority: 49 U.S.C. 322, 30111, 30162; The means for activating any such mechanism to any position where it will delegation of authority at 49 CFR 1.50. device shall be covered by a non- remain without assistance, including a 2. Section 571.114 is amended by transparent surface which, when position between the detent positions, revising S1, S4.2.1, and S4.2.2, and installed, prevents sight of and except for the ‘‘park’’ position. Try to adding new paragraphs S5 through S5.3, activation of the device. The covering remove the key from each possible key to read as follows: surface shall be removable only by use position in each such shift position. of a screwdriver or other tool. (b) Drive the vehicle forward up a 10 § 571.114 Standard No. 114; Theft (b) Notwithstanding S4.2.1, each percent grade and stop it with the protection. vehicle specified therein may have a service brakes. Apply the parking brake S1 Purpose and Scope. This device which, when activated, permits (if present). Move the shift mechanism standard specifies requirements moving the transmission shift lever from to the ‘‘park’’ position. Apply the primarily for theft protection to reduce ‘‘park’’ after the removal of the key. The service brakes. Release the parking the incidence of crashes resulting from device shall either be operable: brake. Release the service brakes. unauthorized operation of a motor (1) By the key, as defined in S3; or Remove the key. Verify that the vehicle. It also specifies requirements to (2) By another means, provided that transmission shift mechanism or reduce the incidence of crashes steering is prevented when the key is transmission is locked in ‘‘park.’’ Verify resulting from the rollaway of parked removed from the ignition, and that vehicle movement was less than or vehicles with automatic transmissions provided that the means for activating equal to 150 mm after release of the as a result of children moving the shift the device is covered by a non- service brakes. mechanism out of the ‘‘park’’ position. transparent surface which, when Issued on June 1, 1995. * * * * * installed, prevents sight of and Ricardo Martinez, S4.2.1(a)(1) Except as provided in activation of the device. The covering Administrator. S4.2.2(a) and (b), the key-locking system surface shall be removable only by use required by S4.2 in each vehicle which of a screwdriver or other tool. [FR Doc. 95–13867 Filed 6–6–95; 8:45 am] BILLING CODE 4910±59±P is manufactured prior to September 1, * * * * * 1996, and which has an automatic S5. Compliance Test Procedure for transmission with a ‘‘park’’ position vehicles with automatic transmissions. shall, when tested under the test S5.1 Test Conditions. INTERSTATE COMMERCE procedures in S5(a), prevent removal of (a) The vehicle shall be tested at curb COMMISSION the key: weight plus 91 kg (including the driver). 49 CFR Part 1023 (i) Whenever the shift lever or other (b) Except where specified otherwise, shifting mechanism is fully placed in the test surface shall be level. [Ex Parte No. MC±100 (Sub-No. 6)] any designated shift position other than S5.2 Test procedure for vehicles ‘‘park,’’ unless the transmission or manufactured before September 1, 1996. Single State Insurance Registration transmission shift mechanism become (a) Drive the vehicle forward and stop AGENCY: Interstate Commerce locked in ‘‘park’’ as the direct result of with the service brakes. Apply the Commission. removing the key; and parking brake (if present). Try to remove (ii) Whenever the shift lever or other the ignition key from each possible key ACTION: Final rule. shifting mechanism is fully placed in position. SUMMARY: The Commission is revising the park position, unless the (b) Repeat the procedure in S5.2(a) the receipt provisions of its regulations transmission or transmission shift with the transmission shift mechanism pertaining to registration by motor mechanism are locked in park or in each forward drive shift detent carriers with states. Pursuant to a court become locked in ‘‘park’’ as the direct position. remand, the Commission has result of removing the key. (c) Drive the vehicle backward and reexamined provisions permitting motor (2) Except as provided in S4.2.2(a) stop with the service brakes. Apply the carriers to make copies of registration and (b), the key-locking system required parking brake. Try to remove the receipts. Under the revised rules, states by S4.2 in each vehicle which is ignition key from each possible key will issue official copies of receipts, and manufactured on or after September 1, position. motor carrier copying will be 1996, and which has an automatic (d) Move the transmission shift prohibited. transmission with a ‘‘park’’ position mechanism to the ‘‘neutral’’ detent shall, when tested under the procedures position. Try to remove the ignition key EFFECTIVE DATE: July 7, 1995. in S5(b), prevent removal of the key from each possible key position. FOR FURTHER INFORMATION CONTACT: unless the transmission or transmission (e) Drive the vehicle forward up a 10 Kenneth H. Schwartz, (202) 927–5299 or shift lever is locked in ‘‘park’’ or percent grade and stop it with the Joseph H. Dettmar, (202) 927–5660. becomes locked in ‘‘park’’ as the direct service brakes. Apply the parking brake. [TDD for the hearing impaired: (202) result of removing the key. Move the shift mechanism to the ‘‘park’’ 927–5721.] (3) Each vehicle shall not move more position. Apply the service brakes. SUPPLEMENTARY INFORMATION: In a than 150 mm on a 10 percent grade Release the parking brake. Release the decision in Single State Insurance when the transmission or transmission service brakes. Remove the key. Verify Registration, 9 I.C.C.2d 610 (1993), shift lever is locked in ‘‘park.’’ that the transmission shift mechanism Notice published at 58 FR 28932 on 30012 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Rules and Regulations May 18, 1993, the Commission adopted directly or indirectly, on such entities. relating to their underlying final regulations that replaced a multi- As before, all motor carriers registering supplemental registrations. state motor vehicle and operating with participating states will be (b) Receipts and official copies issued authority registration system with a required to distribute copies of pursuant to a filing made during the simplified, single-state, insurance-based registration receipts to their vehicles; annual registration period specified in registration system. The Commission but, under the revised regulations, § 1023.4(b)(2) must be issued within 30 acted in accordance with Congressional motor carriers are relieved of the burden days of filing of a fully acceptable revisions to 49 U.S.C. 11506— of reproducing the receipt copies. The registration application. All other Registration of Motor Carriers by a State, economic impact on small entities, if receipts and official copies must be which required the Commission to any, should be positive but is not likely issued by the 30th day following the prescribe amendments to the regulations to be significant within the meaning of date of filing of a fully acceptable that had governed the registration the Regulatory Flexibility Act. supplemental registration application. system under the old law. All receipts and official copies shall Environmental and Energy On judicial review, in Nat’l Ass’n of expire at midnight on the 31st day of Considerations Regulatory Util. Comm’rs v. ICC, 41 F.3d December of the registration year for 721 (D.C. Cir. 1994), the court found We conclude that this action will not which they were issued. that the Commission had improperly significantly affect either the quality of (c) A carrier is permitted to operate its balanced conflicting policy goals in the human environment or the motor vehicles only in those adopting regulations giving motor conservation of energy resources. participating States with respect to carriers the authority to copy the which it has paid appropriate fees, as List of Subjects in 49 CFR Part 1023 registration receipts required by law to indicated on the receipts and official be kept in each motor vehicle. The court Insurance, Motor carriers, Surety copies. It may not operate more motor remanded such provisions to the bonds. vehicles in a participating State than the Commission for further consideration. For the reasons set forth in the number for which it has paid fees. The Commission requested comments preamble, title 49, chapter X, part 1023 (d) A motor carrier may not copy or in light of the court’s decision. alter a receipt or an official copy of a Upon consideration of the court’s of the Code of Federal Regulations is amended as follows: receipt. opinion and the comments received (e) A motor carrier must maintain in from the trucking and insurance PART 1023ÐSTANDARDS FOR each of its motor vehicles an official industries, state regulatory agencies, and REGISTRATION WITH STATES copy of its receipt indicating that it has other interested parties, the Commission filed the required proof of insurance and is revising the receipt provisions of the 1. The authority citation for part 1023 paid appropriate fees for each State in regulations. Under the revised rules, continues to read as follows: which it operates. states will issue official copies of Authority: 49 U.S.C. 10321 and 11506; 5 (f) A motor carrier may transfer its registration receipts, and motor carriers U.S.C. 553. official copies of its receipts from will be required to maintain an official vehicles taken out of service to their copy in each reported motor vehicle. 2. Section 1023.5 is revised to read as follows: replacement vehicles. Motor carrier copying of receipts will be (g) The driver of a motor vehicle must prohibited. § 1023.5 Registration receipts. present an official copy of a receipt for Additional information is contained (a) On compliance by a motor carrier inspection by any authorized in the Commission’s decision. To government personnel on reasonable purchase a copy of the full decision, with the annual or supplemental registration requirements of § 1023.4, demand. write to, call, or pick up in person from: (h) No registration State shall require Dynamic Concepts, Inc., Interstate the registration State must issue the carrier a receipt reflecting that the decals, stamps, cab cards, or any other Commerce Commission Building, 1201 means of registering or identifying Constitution Avenue NW., Room 2229, carrier has filed the required proof of insurance and paid fees in accordance specific vehicles operated by a motor Washington, DC 20423. Telephone: carrier. (202) 289–4357/4359. [Assistance for with the requirements of that section. the hearing impaired is available The registration State also must issue a Decided: May 24, 1995. through TDD service (202) 927–5721.] number of official copies of the receipt By the Commission, Chairman Morgan, equal to the number of motor vehicles Vice Chairman Owen, and Commissioners Regulatory Flexibility Certification for which fees have been paid. Simmons and McDonald. Vice Chairman Pursuant to 5 U.S.C. 605(b), we (1) The receipt and official copies Owen commented with a separate conclude that our action in this must contain only information expression. proceeding will not have a significant identifying the carrier and specifying Vernon A. Williams, economic impact on a substantial the States for which fees were paid. Secretary. number of small entities. No new Supplemental receipts and official [FR Doc. 95–13935 Filed 6–6–95; 8:45 am] regulatory requirements are imposed, copies need contain only information BILLING CODE 7035±01±P 30013 Proposed Rules Federal Register Vol. 60, No. 109 Wednesday, June 7, 1995 This section of the FEDERAL REGISTER The Department is issuing this Accordingly, it may be appropriate to contains notices to the public of the proposed proposed rule in conformance with amend the aforesaid provision, effective issuance of rules and regulations. The Executive Order 12866. December 1, 1996. purpose of these notices is to give interested This proposed rule has been reviewed List of Subjects in 7 CFR Part 1150 persons an opportunity to participate in the under Executive Order 12778, Civil rule making prior to the adoption of the final Dairy products, Reporting and rules. Justice Reform. This rule is not intended to have a retroactive effect. The Dairy recordkeeping requirements, Research. and Tobacco Adjustment Act of 1983 The proposed amendment, as set forth DEPARTMENT OF AGRICULTURE provides in section 121(a) that nothing below, has not received the approval of in the Act may be construed to preempt the Secretary of Agriculture. Agricultural Marketing Service or supersede any other program relating For the reasons set forth in the to dairy product promotion organized preamble, it is proposed that 7 CFR part 7 CFR Part 1150 and operated under the laws of the 1150 be amended as follows: United States or any State. [DA±95±15] The Dairy and Tobacco Adjustment PART 1150Ð[AMENDED] Act of 1983 provides that administrative 1. The authority citation for 7 CFR Dairy Promotion Program; Invitation proceedings must be exhausted before Part 1150 continues to read as follows: To Submit Comments on Proposed parties may file suit in court. Under Amendments to the Order section 118(a) of the Act, any person Authority: Pub. Law 98–180, 97 Stat. 1128. subject to an order issued under the Act AGENCY: Agricultural Marketing Service, may file with the Secretary a petition Proposed by the National Dairy USDA. stating that any such order or any Promotion and Research Board ACTION: Proposed rule. provisions of the order or obligation 2. Section 1150.132(b) is revised to imposed in connection with the order is read as follows: SUMMARY: This document invites written not in accordance with law and request comments on a proposal to amend the a modification of an order or to be § 1150.132 Term of Office. Dairy Research and Promotion Order to exempted from the order. A petitioner is * * * * * modify the term expiration date for afforded the opportunity for a hearing (b) Each member of the Board shall National Dairy Board members, effective on the petition. After the hearing, the serve until November 30 of the year in December 1, 1996. The proposal was Secretary would rule on the petition. which his/her term expires, except that submitted by the National Dairy The Act provides that the district court a retiring member may serve until a Promotion and Research Board which of the United States in any district in successor is appointed. contends the action is necessary to which the person is an inhabitant or * * * * * enable it to operate more effectively. carries on business has jurisdiction to Dated: June 1, 1995. DATES: Comments are due no later than review the Secretary’s ruling on the Lon Hatamiya, July 7, 1995. petition, provided a complaint is filed Administrator. ADDRESSES: Comments should be sent not later than 20 days after the date of [FR Doc. 95–13922 Filed 6–6–95; 8:45 am] the entry of the ruling. to: USDA/AMS/Dairy Division, Room BILLING CODE 3410±02±P 2968, South Building, P.O. Box 96456, Section 1150.132(b) of the Dairy Washington, DC 20090–6456. Research and Promotion Order currently provides that each member of the Board FEDERAL RESERVE SYSTEM FOR FURTHER INFORMATION CONTACT: shall serve until April 30 of the year in Silvio Capponi, Jr., Deputy Director, which his/her term expires, except that 12 CFR Part 203 USDA/AMS/Dairy Division, Room 2953, a retiring member may serve until a South Building, P.O. Box 96456, successor is appointed. The proposed [Regulation C; Docket No. R±0881] Washington, DC 20090–6456, (202) 720– amendment would modify the term Home Mortgage Disclosure 4664. expiration date from April 30 to SUPPLEMENTARY INFORMATION: The November 30. AGENCY: Board of Governors of the Regulatory Flexibility Act (5 U.S.C. The National Dairy Promotion and Federal Reserve System. 601–612) requires the Agency to Research Board, which administers the ACTION: Proposed rule; staff examine the impact of a proposed rule order, contends that the proposed interpretation. on small entities. Pursuant to 5 U.S.C. amendment is necessary to enable it to 605(b), the Administrator of the operate more effectively to conclude SUMMARY: The Board is publishing for Agricultural Marketing Service has yearly business. The Board indicates comment a staff commentary to certified that this proposed rule would that the proposed amendment would Regulation C (Home Mortgage not have a significant economic impact take effect with the Board members Disclosure). The commentary applies on a substantial number of small seated at its annual meeting in and interprets the requirements of entities. The proposed amendment December 1996. Additionally, it states Regulation C. The proposed would modify the term expiration date that the proposed term of December commentary provides guidance on of National Dairy Board members and through November closely corresponds various issues including the treatment would not have an economic effect on with its fiscal year of January 1 through under Regulation C of prequalifications, any entity engaged in the dairy industry. December 31. participations, refinancings, home 30014 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules equity lines, mergers, and loan adoption of a staff commentary to following discussion, however, provides applications received through a broker. Regulation C to provide guidance on some explanation on a few of the points The Board believes the proposed compliance with the regulation. In covered in the proposal. commentary will reduce burden and response, the Board is proposing to Section 203.1—Authority, Purpose, and ease compliance by clarifying a number issue a staff commentary (12 CFR part Scope of issues, by providing flexibility in 203 (Supp. I)) that interprets the compliance, and by consolidating the regulation. The Board believes the 1(c) Scope guidance that is currently available from commentary will provide significant Refinancings a variety of sources. assistance to institutions by clarifying a DATES: Comments must be received on number of issues and providing Proposed comments 1(c)–3 and –4 or before August 7, 1995. flexibility in compliance with the clarify that an origination includes the refinancing of a home purchase loan for ADDRESSES: Comments should refer to regulation. The proposed commentary Docket No. R–0881 and may be mailed follows the narrative format used in purposes of determining coverage and to William W. Wiles, Secretary, Board of most of the Board’s other staff exemptions from coverage. The Governors of the Federal Reserve commentaries, such as those issued to comments provide guidance on System, 20th Street and Constitution interpret Regulation Z (12 CFR part 226) alternate ways an institution may Avenue, NW., Washington, DC 20551. and Regulation B (12 CFR part 202). The identify transactions to determine Comments also may be delivered to proposed commentary provides general coverage and data collection Room B–2222 of the Eccles Building guidance in applying the regulation to requirements. between 8:45 a.m. and 5:15 p.m. various transactions, and would be Participations weekdays, or to the guard station in the updated periodically to address Proposed comment 1(c)–7 would Eccles Building courtyard on 20th significant questions that arise. allow the reporting of an institution’s Street, NW. (between Constitution II. Explanation of Proposed partial interest in a participation loan, at Avenue and C Street) at any time. Commentary the institution’s option. Among other Comments received will be available for things, this would allow an institution inspection in Room MP–500 of the The proposed commentary to report its partial interest in a large- Martin Building between 9 a.m. and 5 incorporates much of the guidance in A dollar home purchase or home p.m. weekdays, except as provided in 12 Guide to HMDA Reporting—Getting It CFR 261.8 of the Board’s rules regarding Right!, developed by member agencies improvement loan. Of course, given the availability of information. of the Federal Financial Institutions exclusion in section 203.4(d) from Examination Council (FFIEC) (the Office reporting the purchase of an interest in FOR FURTHER INFORMATION CONTACT: Jane of the Comptroller of the Currency, the a loan pool, the present comment is Jensen Gell, W. Kurt Schumacher, or Federal Deposit Insurance Corporation, intended to allow the reporting of Manley Williams, Staff Attorneys, the Office of Thrift Supervision, the partial interests where the reporting Division of Consumer and Community National Credit Union Administration, institution has a direct interest in the Affairs, Board of Governors of the and the Federal Reserve Board), and the loan itself, and not an interest in a Federal Reserve System, at (202) 452– Department of Housing and Urban security such as a mortgage-backed 3667 or (202) 452–2412; for the hearing Development. Other sources of material security. impaired only, Dorothea Thompson, in the proposed commentary include The Board solicits comment on Telecommunications Device for the supplementary information published whether reporting participation interests Deaf, at (202) 452–3544. in the Federal Register notice of the in this manner will address home SUPPLEMENTARY INFORMATION: amendments to Regulation C recently mortgage lending by a consortium of adopted by the Board (59 FR 63698, lenders. A consortium may be I. Background December 9, 1994) and other Federal structured in several ways. If a The Board’s Regulation C (12 CFR Register notices on Regulation C, and consortium is a nonprofit mortgage Part 203) implements the Home portions of Appendix A to the lender, it would not be covered under Mortgage Disclosure Act of 1975 regulation. The Board believes that Regulation C. If the consortium is a for- (HMDA) (12 U.S.C. 2801 et seq). HMDA consolidating the guidance that is profit mortgage lender that meets the requires most mortgage lenders located currently available from a variety of tests for coverage under Regulation C, it in metropolitan areas to collect data sources into one source will ease would report applications and loans about their housing-related lending compliance and reduce burden. originated by the consortium. If the activity. Annually, lenders must file The Board solicits suggestions on consortium is structured so that reports with their federal supervisory additional issues that are not addressed participating lenders underwrite and agencies and make disclosures available in this proposal but that may need originate a loan, each lender may report to the public. The reports and clarification, and will consider adding its partial interest in the loan. disclosures cover loan originations, commentary material to address such applications that do not result in issues in the final version of the Section 203.2—Definitions originations (for example, applications commentary. 2(b) Application that are denied or withdrawn), and loan In cases where provisions of purchases. Information reported Regulation C have been modified by the Prequalifications includes the location of the property to amendments issued by the Board in Financial institutions must report which the loan or application relates; December 1994 (scheduled to take effect action taken upon applications for (as the race or national origin, gender, and on a mandatory basis in calendar year well as originations and purchases of) gross annual income of the borrower or 1996), the relevant commentary home purchase and home improvement applicant; and the type of purchaser for provisions relate to those amendments loans (including refinancings). loans sold in the secondary market. rather than the existing regulatory Institutions have asked the Board for The Board has received many requests requirements. clarification on the correct treatment from other supervisory agencies and Most of the proposed commentary under Regulation C of prequalification from financial institutions suggesting material is self-explanatory. The and preapproval programs. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30015 In its amendments to Regulation C excluded by some other exemption). Paragraph 4(a)(7) issued in December 1994, the Board Other branches and offices of foreign Income of Applicants deferred a final determination on banks, which do not meet the FDI Act whether and how lenders ought to definition, are covered by HMDA only Proposed comment 4(a)(7)–5 provides report prequalifications (or if they meet the tests for coverage of guidance regarding data reporting preapprovals). Instead, the Board nondepository institutions. requirements for applicant income. The provided that institutions need not comment clarifies that institutions must 2(g) Home-purchase Loan include data about prequalifications (or report all income used to make the preapprovals) in their HMDA Home Equity Lines credit decision. This figure would submissions for calendar year 1994 or include any income the institution 1995. Under Regulation C, institutions have considers in qualifying the applicant, The Board believes that the option to report that portion of a even if the funds are not factored into prequalification requests (as that term is home equity line of credit that the the debt-to-income ratio analysis. borrower indicates, at the time of used in the proposed commentary) are III. Form of Comment Letters not applications for purposes of application or when the account is Regulation C, even though they may be opened, will be used for home Comment letters should refer to applications under Regulation B. improvement purposes. Proposed Docket No. R–0881. The Board requests Proposed comment 2(b)–2 provides comment 2(g)–6 sets forth the same that, when possible, comments be guidance so that institutions can position with regard to home equity prepared using a standard courier distinguish a request for a lines to be used for home purchase typeface with a type size of 10 or 12 prequalification from an application purposes. As in the case of home equity characters per inch. This will enable the under Regulation C. lines for home improvement, the Board to convert the text into machine- The Board may consider proposing institution may choose not to report readable form through electronic amendments to Regulation C to address home equity lines at all. If the scanning, and will facilitate automated prequalifications and preapprovals, institution reports home equity retrieval of comments for review. including whether institutions should originations, the institution must also Comments may also be submitted on report home equity applications that did computer diskettes, using either the 3.5′′ be required to report some or all ′′ preapproval requests. (A preapproval not result in originations. If the or 5.25 size, in any IBM-compatible request is generally considered to be a institution chooses to report a home DOS-based format. Comments on request by an applicant for a equity line, it should report only the computer diskettes must be commitment from an institution to lend amount indicated at time of application accompanied by a hard copy version. or establishing the credit line, to be used a specific amount, subject to the List of Subjects in 12 CFR Part 203 applicant’s selection of residential for purposes of purchasing a dwelling. Banks, banking, Consumer protection, property that is satisfactory to the Section 203.3—Exempt Institutions Federal Reserve System, Mortgages, institution. A preapproval program may Reporting and recordkeeping be part of or separate from the 3(a) Exemption Based on Location, requirements. institution’s mortgage loan application Asset Size, or Number of Home- program.) If, for example, coverage purchase Loans For the reasons set forth in the included all preapprovals, the Board Mergers preamble, the Board proposes to amend might consider adding to the purpose 12 CFR part 203 as follows: codes ‘‘code 5. Preapproval’’ to Proposed comment 3(a)–2 deals with reporting responsibilities in situations PART 203ÐHOME MORTGAGE distinguish preapprovals from other DISCLOSURE (REGULATION C) application procedures. The Board may where two financial institutions merge. also consider adding a new action taken The proposed comment is based on 1. The authority citation for part 203 code, such as ‘‘code 7. Loan material in the Guide to HMDA continues to read as follows: Reporting, but additional detail has preapproved’’ to distinguish situations Authority: 12 U.S.C. 2801–2810. where a loan is preapproved but not been added concerning mergers originated from other actions taken on involving a covered and an exempt 2. Part 203 would be amended by applications. institution. (Other material from the adding a new Supplement I—Staff section of the Guide relating to mergers Interpretations after the Appendices to 2(e) Financial Institution and changes in supervisory agencies read as follows: Foreign banks appears in proposed comments 3(a)–3 Supplement I to Part 203—Staff and 5(a)–1.) Proposed comments 2(e)–1 and –2 Interpretations discuss coverage of various types of Section 203.4—Compilation of Loan Introduction branches and other offices of foreign Data 1. Status. This commentary in this banks for purposes of Regulation C. The 4(a) Data Format and Itemization supplement is the vehicle by which the staff definition of a covered institution in of the Division of Consumer and Community HMDA refers, in part, to banks as Paragraph 4(a)(6) Affairs of the Federal Reserve Board issues defined in the Federal Deposit Location of Property—BNAs staff interpretations of Regulation C (12 CFR Insurance Act (FDI Act). The FDI Act part 203). definition of ‘‘bank’’ includes certain Proposed comment 4(a)(6)–4 allows Section 203.1—Authority, Purpose, and types of branches and offices of foreign institutions to report block numbering Scope banks, and excludes other types. areas (BNAs) for properties located in 1(c) Scope. Accordingly, certain branches and counties for which census tracts have 1. General. The comments in this section offices of foreign banks, which meet the not been established. This option would address issues affecting coverage of FDI Act definition of ‘‘bank,’’ are provide more detailed information that institutions, exemptions from coverage, and covered by HMDA as depository may be used to examine and assess an data collection requirements. (Paragraphs I., institutions (assuming they are not institution’s housing-related lending. II., IV. and V. of Appendix A of this part.) 30016 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 2. Meaning of refinancing. A refinancing of credit decision, and (3) determines whether origination of a home purchase or home a loan is the satisfaction and replacement of to acquire the loan at or after closing. improvement loan, it may report the an existing obligation by a new obligation by (Paragraphs IV.A. and V.B.1. of Appendix A transaction as an origination to the extent of the same borrower. The term ‘‘refinancing’’ of this part.) its participation interest, or it may choose not refers to the new obligation. If the existing 6. The broker rule—originations. If an to report the transaction. If an institution obligation is not satisfied and replaced, but investor institution reviews a loan chooses to report originations, it must also is only renewed or modified (such as in application from a broker prior to closing, report applications that do not result in certain ‘‘modification, extension, and makes a decision to extend credit, and then originations (for example, denials). When a consolidation agreements’’), the transaction acquires the loan at or after closing, the single institution originates the loan and is not a refinancing. (Paragraph V.A.5. Code investor institution originates that loan for subsequently sells participation interests to 3. of Appendix A of this part.) purposes of Regulation C, whether the loan other institutions, those institutions report 3. Refinancing—coverage. For purposes of closes in the name of the broker or the their interests as purchased loans. determining whether an institution is investor institution. If a broker submits a loan (Paragraphs I., II., IV. and V. of Appendix A covered by Regulation C or is exempt, an application to more than one investor, each of this part.) origination of a home purchase loan includes investor reports the action it has taken on the the refinancing of a home purchase loan. application. For example, each investor Section 203.2—Definitions (Paragraphs I.B., I.C. and I.D. of Appendix A denying the application reports a denial. (2)(b) Application. of this part.) When an institution refinances (Paragraphs IV.A. and V.B.1. of Appendix A 1. Consistency with Regulation B. The an existing obligation, the institution must of this part.) definition of ‘‘application’’ in Regulation C is either: 7. Broker’s use of investor institution’s virtually identical to the definition of i. Assume that if the refinancing results in underwriting criteria. A broker makes a ‘‘application’’ in Regulation B (Equal Credit a new obligation secured by a lien on a decision to extend credit based on Opportunity, 12 CFR Part 202). Accordingly, dwelling, the new obligation is a refinancing underwriting criteria set by an investor guidance in the official staff commentary to of a home purchase loan under Regulation C institution, but without the investor Regulation B is generally applicable to the (and may assume, if the new obligation is not institution’s review before closing. Under definition of an application under Regulation secured by a lien on a dwelling, that it is not these facts, the broker originates that loan for C. (Paragraph IV.A. of Appendix A of this a refinancing of a home purchase loan); or purposes of Regulation C (unless the broker part.) ii. Determine the purpose of the existing is an agent or contract underwriter for the 2. Prequalification. A prequalification obligation. The institution may use the investor institution), and the investor request is generally considered to be a following guidelines: institution that acquires the loan after closing request by a prospective loan applicant to a a. The institution may rely on the purchases the loan under Regulation C. If the lending institution for a preliminary broker is subject to Regulation C, the broker statement of the applicant or borrower. determination on whether the prospective reports as originations the loans that it b. If the existing obligation was secured, applicant would likely qualify for credit approves and closes, and reports as denials the institution may assume that it was for under the institution’s standards, or on how the loan applications that it turns down home purchase purposes, and that the new much credit the prospective applicant would (either because they do not meet the obligation is a refinancing of a home likely qualify for. Further, a prequalification investor’s underwriting guidelines or for purchase loan under Regulation C. request is generally evaluated by the some other reason). institution through a procedure that is c. If the existing obligation was unsecured, 8. Post-closing review by the investor the institution may assume that it was not for separate from the institution’s normal loan institution. An investor institution agrees application process. A prequalification home purchase purposes, and that the new with a broker to purchase loans that meet the obligation is not a refinancing of a home request is not an application under investor institution’s underwriting Regulation C, even though it may constitute purchase loan under Regulation C. guidelines, which the broker uses in making 4. Refinancing—data collection. For an application under Regulation B, requiring credit decisions on loan applications. The a lender to notify an applicant of the action purposes of data collection (paragraph V.A.5. investor institution reviews loans only after Code 3. of Appendix A of this part) an taken. (Paragraphs I. and IV.A. of Appendix closing to confirm that the loans meet its A of this part.) institution must either: underwriting guidelines. Under these facts, (2)(c) Branch office. i. Assume that if a refinancing results in a the broker originates the loans and the 1. Depository institution. A branch of a new obligation secured by a lien on a investor institution purchases the loans depository institution does not include a loan dwelling, the new obligation is a refinancing under Regulation C. If the broker is covered production office or the office of an affiliate, of a home purchase or home improvement by Regulation C, the broker reports as nor does it include the office of a third party loan under Regulation C (and may assume, if originations the loans that it approves and such as a loan broker. (Paragraphs I., V.A.6. the new obligation is not secured by a lien closes, and reports as denials the loan and V.C. of Appendix A of this part.) on a dwelling, that it is not a refinancing of applications that it turns down. The investor 2. Nondepository institution. A branch of a a home purchase or home improvement reports only those loans it purchases. nondepository institution does not include loan); or 9. Third-party underwriting guidelines. An the office of an affiliate or other third party. ii. Determine the purpose of the existing investor institution agrees to purchase from (Paragraphs I., V.A.6. and V.C. of Appendix obligation. The institution may use the a broker loans that have government or A of this part.) (But see paragraph V.C.6. of following guidelines: private insurance, but does not review loan Appendix A of this part, requiring a. The institution may rely on the applications prior to closing. The broker nondepository institutions to report property statement of the applicant or borrower. evaluates loan applications using the location even in MSAs where they do not b. If the existing obligation was secured, insurer’s guidelines, or delivers applications have a physical location.) the institution may assume that it was for to the insurer for a determination on whether home purchase or home improvement it will insure the loan. After closing, the (2)(d) Dwelling. purposes, and that the new obligation is a investor institution purchases those loans 1. Scope. The definition of ‘‘dwelling’’ is refinancing under Regulation C. that have been insured. Under these facts, the not limited to the principal or other 5. Meaning of ‘‘broker’’ and ‘‘investor broker makes the credit decisions and the residence of the applicant or borrower. Thus, institution.’’ The term ‘‘broker’’ (or investor institution purchases the loans vacation or second homes and rental correspondent) refers to any party (whether under Regulation C. The investor reports properties are dwellings under Regulation C. a bank, thrift, credit union, mortgage banker, those loans it purchases; it does not report Dwellings include mobile or manufactured mortgage broker, or other type of depository other loans. If the broker is covered by homes, multifamily structures (such as or nondepository institution) that takes and Regulation C, it reports as originations the apartment buildings), and condominium and processes loan applications from applicants loans that it approves and closes, and reports cooperative units. Recreational vehicles such and that has an arrangement with another as denials the loan applications that it turns as boats or campers are not dwellings. party (an ‘‘investor institution’’) under which down. (Paragraphs I.B., IV., and V.A.5. of Appendix the investor institution (1) reviews the 10. Participation loan. If an institution A of this part.) application prior to closing, (2) makes a participates in the underwriting and (2)(e) Financial institution. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30017 1. Branches of foreign banks—treated as a identified or coded the loan as a home merger. (Paragraph I. of Appendix A of this bank. Both a federal branch and a state- improvement loan. For example, an part.) licensed insured branch of a foreign bank are institution that has marketed a loan, i. Two institutions are exempt from a ‘‘bank’’ under the Federal Deposit ‘‘booked’’ it, or reported it on a ‘‘call report’’ Regulation C. The institutions merge, Insurance Act, and are covered if they meet as home improvement loan has ‘‘classified’’ producing a covered institution. No data the tests for a depository institution found in it as a home improvement loan. (Paragraphs collection is required; the surviving §§ 203.2(e)(1) and 203.3(a)(1). (Paragraphs IV. and V.A.5. Code 2. of Appendix A of this institution begins HMDA data collection in I.A. and I.B. of Appendix A of this part.) part.) the following calendar year. 2. Branches and offices of foreign banks— (2)(g) Home-purchase loan. ii. A covered and an exempt institution treated as a for-profit mortgage lending 1. Multiple properties. A home purchase merge. The covered institution is the institution. Federal agencies, state-licensed loan includes a loan secured by one surviving institution. Data collection is agencies, state-licensed uninsured branches dwelling, with the proceeds to be used to required for the covered institution’s of foreign banks, commercial lending purchase another dwelling. (Paragraphs IV. transactions; data collection is optional for companies owned or controlled by foreign and V.A.5. Code 1. of Appendix A of this transactions of the previously exempt banks, and entities operating under section part.) institution (for example, transactions 25A or 25 of the Federal Reserve Act (Edge 2. Mixed-use property. A loan to purchase handled in offices of the previously exempt Act and agreement corporations) are covered property used primarily for residential institution). by Regulation C if they meet the tests for a purposes (for example, an apartment building iii. A covered and an exempt institution nondepository mortgage lending institution containing a convenience store) is a home merge. The exempt institution is the found in §§ 203.2(e)(2) and 203.3(a)(2). purchase loan. (Paragraphs IV.A., IV.B.1. and surviving institution. Data collection is (Paragraphs I.C. and I.D. of Appendix A of V.A.5. Code 1. of Appendix A of this part.) required for the covered institution’s this part.) 3. Commercial and other loans. A home transactions taking place prior to the merger, (2)(f) Home-improvement loan. purchase loan includes a loan for home and is optional for transactions taking place Paragraph (2)(f)(1). purchase purposes originated outside an after the merger date and attributable to the 1. Home improvement. A home institution’s mortgage lending division (such covered institution. improvement loan is a loan to be used for as a loan for the purchase of an apartment iv. Two covered institutions merge. The improvements to a dwelling or to the real building handled by the institution’s surviving institution is required to collect all property on which the dwelling is located. commercial loan department). (Paragraphs data for both institutions; it may file a (Paragraphs IV. and V.A.5. Code 2. of IV. and V.A.5. Code 1. of Appendix A of this consolidated submission or separate Appendix A of this part.) Examples include: part.) submissions for that year. i. Installation of a swimming pool; 4. Farm loan. If the property being 3. Mergers versus purchases in bulk. If a ii. Construction of a detached garage; purchased is used primarily for agricultural covered institution acquires loans in bulk iii. Landscaping; or purposes—even if the property includes a from another institution (for example, the iv. Purchase of appliances to be installed dwelling—a loan to purchase the property is receiver of a failed institution), but no merger as fixtures to the dwelling. not a home purchase loan. (Paragraphs or acquisition is involved, the institution 2. Multiple properties. A home IV.B.1. and V.A.5. Code 1. of Appendix A of treats the loans as purchased loans. improvement loan includes a loan secured by this part.) (Paragraph V.B. of Appendix A of this part.) one dwelling, with the proceeds to be used 5. Construction/permanent loan. Section 203.4—Compilation of Loan Data to improve another dwelling. (Paragraphs IV. Construction-only loans are ‘‘temporary’’ and V.A.5. Code 2. of Appendix A of this financings under Regulation C and are not 4(a) Data format and itemization. part.) reported. If the institution commits to 1. Quarterly updating. An institution 3. Mixed-use property. A loan to improve provide both the construction and the should make a good-faith effort to enter all property used primarily for residential permanent financing, however, the loan is a data concerning covered transactions—loan purposes (for example, an apartment building home purchase loan for purposes of originations (including refinancings), loan containing a convenience store) is a home Regulation C. (Paragraphs IV.A. and B.2 and purchases, and the disposition of improvement loan. (Paragraphs IV. and V.A.5. Code 1. of Appendix A of this part.) applications that did not result in an V.A.5. Code 2.) 6. Home equity lines. An institution may origination—fully and accurately within 30 4. Multipurpose loan. A loan to make home report the part of a home equity line of credit days after the end of each calendar quarter. improvements (even though less than 50 that is for home purchase. An institution may If the quarterly update shows that some data percent of the total loan proceeds are to be rely on the oral or written statement of an are inaccurate or incomplete despite this used for this purpose) may be treated as a applicant or borrower that the loan proceeds good-faith effort, the error or omission is not home improvement loan provided that the will be used for home purchase purposes. An a violation of Regulation C. (Paragraph II.E. institution classifies the loan as a home institution that reports the origination of of Appendix A of this part.) improvement loan. (Paragraphs IV. and home equity lines must also report Paragraph 4(a)(1). V.A.5. Code 2. of Appendix A of this part.) applications that did not result in 1. Application date—consistency. In 5. Home equity lines. An institution may originations. (Paragraphs IV. and V.A.5. Code reporting the date of application, an report the part of a home equity line of credit 1. of Appendix A of this part.) institution enters the date an application was that is for home improvement. An institution received or the date shown on the that reports the origination of home equity Section 203.3—Exempt Institutions application. The institution should be lines must also report applications that did 3(a) Exemption based on location, asset size, consistent in its practice. (Paragraph V.A.2. not result in originations. (Paragraphs IV. and or number of home-purchase loans. of Appendix A of this part.) V.A.5. Code 2.c. of Appendix A of this part.) 1. General. An institution that ceases to be 2. Application date—application received 6. Reliance on statement of borrower. An a financial institution (as that term is defined through broker. For an application forwarded institution may rely on the oral or written in § 203.2(e)) or that becomes an exempt by a broker, an institution enters the date the statement of an applicant or borrower that institution under this section may stop application was received by the broker, the the loan proceeds will be used for home collecting HMDA data beginning with the date the application was received by the improvement purposes. (Paragraphs IV. and first calendar year after the event that institution, or the date shown on the V.A.5. Code 2.c of Appendix A of this part.) resulted in noncoverage. For example, a bank application. The institution should be Paragraph (2)(f)(2). whose assets drop to $10 million or less on consistent in its practice. (Paragraph V.A.2. 1. Classification. The requirement that a December 31 of a given year collects data for of Appendix A of this part.) loan be ‘‘classified’’ as a home improvement that full calendar year, but need not collect 3. Application date—reinstated loan provides flexibility to institutions in data for the succeeding year. (Paragraph I. of application. If an applicant asks an determining which loans to report. An Appendix A of this part.) institution to reinstate a counteroffer that the institution meets the requirement if it has 2. Coverage after a merger. Data collection applicant previously rejected (or to entered a loan on its books as a home responsibilities under several scenarios are reconsider a denied application), the improvement loan, or has otherwise described below for the calendar year of the institution may treat the request as the 30018 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules continuation of a single transaction if the to the applicant’s meeting certain (and thus may not have collected the applicant’s request occurs within the same underwriting or other conditions and the property location information). (Paragraph calendar year as the prior disposition of the conditions are not met, the institution reports V.C. of Appendix A of this part.) application. Alternatively, the institution the action taken as a denial. (Paragraph V.B. 3. Mobile or manufactured home. If may treat the request as a separate of Appendix A of this part.) information about the potential site of a transaction and the date of the request as the 5. Action taken date—approved but not mobile or manufactured home is not application date. (Paragraph V.A.2. of accepted. For a loan approved by the available, an institution may enter the code Appendix A of this part.) institution but not accepted by the applicant, for ‘‘not applicable.’’ (Paragraph V.C. of Paragraph 4(a)(3). the institution reports either the date of the Appendix A of this part.) 1. Loans outside an MSA. If a loan relates commitment letter sent to the applicant or 4. Use of BNA permitted. Block numbering to property not located in an MSA (or to any deadline that the institution gave the areas (BNAs) are statistical subdivisions property in an MSA where the institution has applicant for accepting the offer. The delineated by state agencies and the U.S. no home or branch office under Regulation institution should be consistent in its Census Bureau for grouping and numbering C), the institution may report the actual practice. (Paragraph V.B.3.b. of Appendix A blocks in counties for which census tracts occupancy status or use the code for ‘‘not of this part.) have not been established. BNAs (which applicable.’’ (Paragraphs V.A.7.c. and V.C.6. 6. Action taken date—origination. generally are identified in census data by of Appendix A of this part.) Generally, for originations, an institution numbers in the range 9501 to 9999.99) may 2. Multiple properties. If a loan relates to enters the settlement or closing date. For a be entered if no census tract number exists. multiple properties, the institution reports loan that an investor institution acquired (Paragraph V.C.4. of Appendix A of this part.) the owner-occupancy status for the property through a broker and reports as an Paragraph 4(a)(7). that is reported under comment 1 to origination, the institution enters the 1. Applicant data—joint applicant. If a paragraph 203.4(a)(6). (Paragraph V.A.6. of settlement date, the closing date, or the date joint applicant does not file the application Appendix A of this part.) the institution acquired the loan from the in person and does not provide the Paragraph 4(a)(4). broker. The institution should be consistent monitoring information, the institution 1. Multiple purpose loan. If a loan relates in its practice. (Paragraph V.B.3. of Appendix reports using the code for information not to other purposes in addition to home A of this part.) provided by applicant in mail or telephone purchase or home improvement, the 7. Action taken date—construction/ application. (Paragraph V.D. of Appendix A institution reports the entire amount of the permanent loan. For a construction/ of this part.) loan, even though not all of the proceeds are permanent loan, the institution reports the 2. Applicant data—application completed for home purchase or home improvement. date the institution enters into the in person. When an applicant meets with a (Paragraph V.A.8. of Appendix A of this construction-loan transaction or when the loan officer to complete an application that part.) loan converts to the permanent financing. was begun previously (for example by mail 2. Home equity line of credit. An The institution should be consistent in its or telephone), the institution must treat the institution that reports home equity lines practice. (Paragraph V.B.3. of Appendix A of application as taken in person and request reports only the amount that the applicant this part.) the monitoring information. A loan closing is indicates will be used for home improvement Paragraph 4(a)(6). not a meeting with a loan officer to complete or home purchase purposes. (Paragraph 1. Multiple properties. For a loan secured an application. (Paragraph V.D. of Appendix V.A.8.c. of Appendix A of this part.) by one dwelling and made for the purpose of A of this part.) 3. Counteroffer. If an institution makes a purchasing or improving another dwelling or 3. Applicant data—completion by counteroffer to lend an amount different from dwellings, an institution reports the location applicant. An institution reports the an applicant’s initial request and the of the property taken as security. For a loan monitoring information an applicant counteroffer is accepted, the institution secured by two or more dwellings, and for provides. If an applicant fails to provide the reports the loan amount as the amount the purpose of purchasing or improving one requested information for an application actually granted. If the counteroffer is of those dwellings, an institution reports the taken in person, the institution enters the rejected or if the applicant fails to respond location of the purchased property. data on the basis of visual observation or to the counteroffer, the institution reports the (Paragraph V.C. of Appendix A of this part.) surname. If an applicant checks the ‘‘other’’ amount initially requested. (Paragraph For example: box the institution must report using the V.A.8.f. of Appendix A of this part.) i. For a loan to purchase or improve ‘‘other’’ code. (Paragraph V.D. of Appendix A 4. Participation loan. An institution property A, secured by property B, report the of this part.) reporting a participation loan origination location of B (the property taken as security); 4. Applicant data—interactive video enters the amount of its interest. (Paragraph ii. For a loan to purchase or improve application. An institution that uses an V.A.8. of Appendix A of this part.) properties A and B, secured by property C, interactive application process with video Paragraph 4(a)(5). report the location of C (the property taken capabilities should treat these applications as 1. Action taken—counteroffer. If an as security); taken in person and collect the information institution makes a counteroffer to lend an iii. For a loan to purchase or improve about race or national origin and sex of amount different from an applicant’s initial property A, secured by properties A and B, applicants. (Paragraph V.D. of Appendix A of request and the counteroffer is accepted, the report the location of A (the property this part.) (See Appendix B of this part for institution reports the loan as an origination. purchased or improved); and procedures to be used for data collection.) If the counteroffer is rejected or if the iv. For a loan to purchase or improve 5. Income data—income relied upon. applicant fails to respond to the counteroffer, properties A and B, secured by properties A Except for income of cosigners (sureties) and the institution reports the action taken as a and B, the institution may report the location guarantors, an institution enters the gross denial. (Paragraph V.B. of Appendix A of this of A or B (one of the properties taken as annual income relied on in evaluating the part.) security). Alternatively, the institution may creditworthiness of applicants. For example, 2. Action taken—rescinded transaction. If report the loan in two entries on its Loan/ if an institution uses an applicant’s salary to an applicant rescinds a transaction after Application Register (using unique compute a debt-to-income ratio, but also closing, an institution reports the action identifiers and allocating the loan amount relies on the applicant’s annual bonus to taken as an origination or as approved but between A and B). meet underwriting standards and approve the not accepted. (Paragraph V.B. of Appendix A 2. Loans purchased from another loan, the institution reports both salary and of this part.) institution. The requirement to report the bonus. (Paragraph V.D.5. of Appendix A of 3. Action taken—purchased loan. An location of a property in an MSA where the this part.) institution reports only purchased loans, not institution has a home or branch office 6. Income data—co-applicant. If two loans that the institution has declined to applies not only to loan applications and persons jointly apply for a loan and both list purchase. (Paragraph V.B. of Appendix A of originations but also to loans purchased from income on the application, but the institution this part.) another institution. This includes loans relies only on the income of one applicant in 4. Action taken—conditional approval. If purchased from an institution that itself did evaluating creditworthiness, the institution an institution issues a loan approval subject not have a home or branch office in that MSA should report only the income of the one Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30019 applicant. (Paragraph V.D.5. of Appendix A property location information for FOR FURTHER INFORMATION CONTACT: of this part.) applications and loans from third parties Timothy Dulin, FAA, Standardization 7. Income data—cosigners and guarantors. (such as appraisers or ‘‘geocoding’’ vendors), Branch, ANM–113, Transport Airplane Although an institution may rely on the the reporting institution is responsible for Directorate, Aircraft Certification income of cosigners and guarantors in ensuring that the data are correct. An making a credit decision, an institution does incorrect census tract number can be treated Service, 1601 Lind Avenue SW., not report this income. Because cosigners as a bona fide error (and is thus not a Renton, Washington, 98055–4056, and guarantors generally are not ‘‘applicants’’ violation of the act or regulation) only if the telephone (206) 227–2141. under Regulation B, they are not treated as institution has maintained procedures SUPPLEMENTARY INFORMATION: co-applicants under Regulation C. (Paragraph reasonably adopted to avoid the error, such V.D.5. of Appendix A of this part.) as performing an audit of the information. Comments Invited 8. Income data—loan to employee. An (Paragraph V.C. of Appendix A of this part.) Interested persons are invited to institution may enter ‘‘NA’’ in the income By order of the Board of Governors of the field for a loan to its employee for privacy Federal Reserve System, acting through the participate in the making of these reasons, even though the institution may Secretary of the Board under delegated proposed special conditions by have relied on income in making its credit authority, June 1, 1995. submitting such written data, views, or decisions. (Paragraph V.D.5. of Appendix A William W. Wiles, arguments as they may desire. of this part.) Secretary of the Board. Communications should identify the Paragraph 4(a)(8). regulatory docket and special conditions [FR Doc. 95–13861 Filed 6–6–95; 8:45 am] 1. Type of purchaser—loan participation number and be submitted in duplicate interests sold to more than one entity. Where BILLING CODE 6210±01±P a loan is originated by one institution but is to the address specified above. All sold to more than one entity, the originating communications received on or before the closing date for comments will be institution reports the type of purchaser DEPARTMENT OF TRANSPORTATION based on the entity purchasing a majority considered by the Administrator. These interest, if any. Otherwise, the institution Federal Aviation Administration special conditions may be changed in uses the code for loans not sold in the light of the comments received. All calendar year covered by the register. 14 CFR Part 25 comments submitted will be available in (Paragraph V.E. of Appendix A of this part.) the Rules Docket for examination by 4(c) Optional data. [Docket No. NM±111; Notice No. SC±95±4± interested persons, both before and after 1. Agency requirements. The reporting of NM] the closing date for comments. A report reasons for denial, although optional under HMDA and Regulation C, may be required Special Conditions: Israel Aircraft summarizing each substantive public information for institutions that are regulated Industries Model Galaxy Series contact with FAA personnel concerning by an agency such as the Office of Thrift Airplane, High Altitude Operation this rulemaking will be filed in the Supervision. (Paragraph V.F. of Appendix A docket. Persons wishing the FAA to of this part.) AGENCY: Federal Aviation acknowledge receipt of their comments 4(d) Excluded data. Administration, DOT. submitted in response to this request 1. Loan pool. The purchase of an interest ACTION: Notice of proposed special must submit with those comments a in a loan pool (such as a mortgage- conditions. self-addressed, stamped postcard on participation certificate, a mortgage-backed which the following statement is made: security, or a real estate mortgage investment SUMMARY: This notice proposes special ‘‘Comments to Docket No. NM–111.’’ conduit or ‘‘REMIC’’) is a purchase of an conditions for the Israel Aircraft interest in a security and is not reported. The postcard will be date stamped and Industries (IAI) Ltd. Model Galaxy returned to the commenter. (Paragraph IV.B.5. of Appendix A of this airplane. This new airplane will have an part.) unusual design feature associated with Background Section 203.5—Disclosure and Reporting an unusually high operating altitude On July 29, 1992, IAI Ltd., Ben-Gurion 5(a) Reporting to agency. (45,000 feet), for which the applicable International Airport, 70100, Israel, 1. Change in supervisory agency. If the airworthiness regulations do not contain applied for a new type certificate in the supervisory agency of a covered institution adequate or appropriate safety transport airplane category for the changes, the institution reports data for the standards. These special conditions year of the change and subsequent years to Model Galaxy airplane. The IAI Model contain the additional safety standards Galaxy airplane is a derivative of the IAI its new supervisory agency. (Paragraphs I., that the Administrator considers III. and IV. of Appendix A of this part.) Model 1125 Westwind Astra and is 2. Subsidiaries. An institution is a necessary to establish a level of safety designed to be a long range, high speed subsidiary of a bank or savings association equivalent to that established by the swept low wing airplane with two (for purposes of reporting HMDA data to the existing airworthiness standards. aftfuselage mounted Pratt & Whitney parent’s supervisory agency) if the bank or DATES: Comments must be received on PW 306A engines and a conventional savings association holds or controls an or before July 24, 1995. empennage. ownership interest that is greater than 50 ADDRESSES: Comments on this proposal The type design of the Model Galaxy percent of the institution. (Paragraph I.E. of Appendix A of this part.) may be mailed in duplicate to: Federal contains a number of novel and unusual 5(e) Notice of availability. Aviation Administration, Office of the design features for an airplane type 1. Poster—suggested text. The wording of Assistant Chief Counsel, Attn.: Rules certificated under the applicable the poster text provided in Appendix A Docket (ANM–7), Docket No. NM–111, provisions of part 25 of the Federal (‘‘Instructions for Completing the HMDA– 1601 Lind Avenue SW., Renton, Aviation Regulations (FAR). Those LAR’’) is optional. An institution may use Washington, 98055–4056; or delivered features include the relatively small other text that meets the requirements of the in duplicate to the Office of the passenger cabin volume and a high regulation. (Paragraph III.G. of Appendix A of Assistant Chief Counsel at the above maximum operating altitude. The this part.) address. Comments must be marked applicable airworthiness requirements Section 203.6—Enforcement ‘‘Docket No. NM–111.’’ Comments may do not contain adequate or appropriate 6(b) Bona fide errors. be inspected in the Rules Docket safety standards for the IAI Galaxy; 1. Bona fide error—data from third parties. weekdays, except Federal holidays, therefore, special conditions are Although an institution may obtain the between 7:30 a.m. and 4:00 p.m. necessary to establish a level of safety 30020 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules equivalent to that established in the Novel or Unusual Design Feature In order to ensure that there is regulations. The IAI Galaxy will incorporate an adequate fresh air for crewmembers to perform their duties, to provide Type Certification Basis unusual design feature in that it will be certified to operate up to an altitude of reasonable passenger comfort, and to Under the provisions of § 21.17 of the 45,000 feet. enable occupants to better withstand the FAR, IAI Ltd. must show that the Galaxy The FAA considers certification of effects of decompression at high meets the applicable provisions of part transport category airplanes for altitudes, the ventilation system must be 25, effective February 1, 1965, as operation at altitudes greater than designed to provide 10 cubic feet of amended by Amendments 25–1 through 41,000 feet to be a novel or unusual fresh air per minute per person during 25–77. The certification basis may also feature because current part 25 does not normal operations. Therefore, these include later amendments to part 25 contain standards to ensure the same special conditions require that that are not relevant to these special level of safety as that provided during crewmembers and passengers be conditions. In addition, the certification operation at lower altitudes. Special provided with 10 cubic feet of fresh air basis for the Galaxy includes part 34, conditions have therefore been adopted per minute per person. In addition, effective September 10, 1990, plus any to provide adequate standards for during the development of the amendments in effect at the time of transport category airplanes previously supersonic transport special conditions, certification; and part 36, effective approved for operation at these high it was noted that certain pressurization December 1, 1969, as amended by altitudes, including certain Learjet failures resulted in hot ram or bleed air Amendments 36–1 through the models, the Boeing Model 747, being used to maintain pressurization. amendment in effect at the time of Dassault-Breguet Falcon 900, Canadair Such a measure can lead to cabin certification. These special conditions Model 600, Cessna Model 650, Israel temperatures that exceed human form an additional part of the type Aircraft Industries Model 1125 tolerance. Therefore, these special certification basis. In addition, the Westwind Astra, and Cessna Model 560. conditions require airplane interior certification basis may include other The special conditions for the Learjet temperature limits following probable special conditions that are not relevant Model 45 are considered the most and improbable failures. to these special conditions. applicable to the Galaxy and its Continuous flow passenger oxygen If the Administrator finds that the proposed operation and are therefore equipment is certificated for use up to applicable airworthiness regulations used as the basis for the special 40,000 feet; however, for rapid (i.e., part 25, as amended) do not conditions described below. decompressions above 34,000 feet, contain adequate or appropriate safety Damage tolerance methods are reverse diffusion leads to low oxygen standards for the Galaxy because of a proposed to be used to ensure pressure partial pressures in the lungs, to the novel or unusual design feature, special vessel integrity while operating at the extent that a small percentage of conditions are prescribed under the higher altitudes, in lieu of the 1⁄2-bay passengers may lose useful provisions of § 21.16 to establish a level crack criterion used in some previous consciousness at 35,000 feet. The of safety equivalent to that established special conditions. Crack growth data percentage increases to an estimated 60 in the regulations. are used to prescribe an inspection percent at 40,000 feet, even with the use Special conditions, as appropriate, are program that should detect cracks before of the continuous flow system. issued in accordance with § 11.49 of the an opening in the pressure vessel would Therefore, to prevent permanent FAR after public notice, as required by allow rapid depressurization. Initial physiological damage, the cabin altitude §§ 11.28 and 11.29, and become part of crack sizes for detection are determined must not exceed 25,000 feet for more the type certification basis in under § 25.571, as amended by than 2 minutes, or 40,000 feet for any accordance with § 21.17(a)(2). Amendment 25–72. The maximum time period. The maximum peak cabin Special conditions are initially extent of failure and pressure vessel altitude of 40,000 feet is consistent with applicable to the model for which they opening determined from the above the standards established for previous are issued. Should the type certificate analysis must be demonstrated to certification programs. In addition, at for that model be amended later to comply with the pressurization section high altitudes the other aspects of include any other model that of the proposed special conditions, decompression sickness have a incorporates the same novel or unusual which state that the cabin altitude after significant, detrimental effect on pilot design feature, the special conditions failure must not exceed the cabin performance (for example, a pilot can be would also apply to the other model altitude/time curve limits shown in incapacitated by internal expanding under the provisions of § 21.101(a)(1). Figures 3 and 4. gases). Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30021 Decompression resulting in cabin Operation to 45,000 Feet history shown in Figure 3 after each of altitudes above the 37,000-foot limit 1. Pressure Vessel Integrity. the following: depicted in Figure 4 approaches the (a) The maximum extent of failure (1) Any probable malfunction or physiological limits of the average and pressure vessel opening that can be failure of the pressurization system. The person; therefore, every effort must be demonstrated to comply with paragraph existence of undetected, latent made to provide the pilots with 4 (Pressurization) of this special malfunctions or failures in conjunction adequate oxygen equipment to condition must be determined. It must with probable failures must be withstand these severe decompressions. be demonstrated by crack propagation considered. Reducing the time interval between and damage tolerance analysis (2) Any single failure in the pressurization failure and the time the supported by testing that a larger pressurization system, combined with pilots receive oxygen will provide a opening or a more severe failure than the occurrence of a leak produced by a safety margin against being demonstrated will not occur in normal complete loss of a door seal element, or incapacitated and can be accomplished operations. a fuselage leak through an opening by the use of mask-mounted regulators. (b) Inspection schedules and having an effective area 2.0 times the These special conditions therefore procedures must be established to effective area that produces the require pressure demand masks with ensure that cracks and normal fuselage maximum permissible fuselage leak rate mask-mounted regulators for the leak rates will not deteriorate to the approved for normal operation, flightcrew. This combination of extent that an unsafe condition could whichever produces a more severe leak. equipment will provide the best exist during normal operation. (b) The cabin altitude-time history practical protection for the failures 2. Ventilation. In lieu of the may not exceed that shown in Figure 4 covered by the special conditions and requirements of § 25.831(a), the after each of the following: for improbable failures not covered by ventilation system must be designed to (1) The maximum pressure vessel the special conditions, provided the provide a sufficient amount of opening resulting from an initially cabin altitude is limited. uncontaminated air to enable the detectable crack propagating for a As discussed above, these special crewmembers to perform their duties period encompassing four normal conditions are applicable to the IAI without undue discomfort or fatigue, inspection intervals. Mid-panel cracks Model Galaxy. Should IAI Ltd. apply at and to provide reasonable passenger and cracks through skin-stringer and a later date for a change to the type comfort during normal operation skin-frame combinations must be certificate to include another model conditions and also in the event of any considered. incorporating the same novel or unusual probable failure of any system that (2) The pressure vessel opening or design feature, these special conditions could adversely affect the cabin duct failure resulting from probable would apply to that model as well ventilating air. For normal operations, damage (failure effect) while under under the provisions of § 21.101(a)(1). crewmembers and passengers must be maximum operating cabin pressure Conclusion provided with at least 10 cubic feet of differential due to a tire burst, engine fresh air per minute per person, or the rotor burst, loss of antennas or stall This action affects only certain design equivalent in filtered, recirculated air warning vanes, or any probable features on the IAI Ltd. Model Galaxy based on the volume and composition at equipment failure (bleed air, pressure airplane. It is not a rule of general the corresponding cabin pressure control, air conditioning, electrical applicability and affects only the altitude of not more than 8,000 feet. source(s), etc.) that affects manufacturer who applied to the FAA 3. Air Conditioning. In addition to the pressurization. for approval of these features on the requirements of § 25.831, paragraphs (b) (3) Complete loss of thrust from all airplane. through (e), the cabin cooling system engines. List of Subjects in 14 CFR Part 25 must be designed to meet the following (c) In showing compliance with conditions during flight above 15,000 paragraphs 4(a) and 4(b) of these special Aircraft, Aviation safety, Reporting feet mean sea level (MSL): and recordkeeping requirements. conditions (Pressurization), it may be (a) After any probable failure, the assumed that an emergency descent is The authority citation for these cabin temperature-time history may not made by approved emergency special conditions is as follows: exceed the values shown in Figure 1. procedure. A 17-second crew Authority: 49 U.S.C. app. 1344, 1348(c), (b) After any improbable failure, the recognition and reaction time must be 1352, 1354(a), 1355, 1421 through 1431, cabin temperature-time history may not applied between cabin altitude warning 1502, 1651(b)(2), 42 U.S.C. 1857f–10, 4321 et exceed the values shown in Figure 2. and the initiation of an emergency seq.; E.O. 11514; and 49 U.S.C. 106(g). 4. Pressurization. In addition to the descent. requirements of § 25.841, the following The Proposed Special Conditions apply: Note: For the flight evaluation of the rapid descent, the test article must have the cabin Accordingly, the Federal Aviation (a) The pressurization system, which volume representative of what is expected to Administration (FAA) proposes the includes for this purpose bleed air, air be normal, such that IAI Ltd. must reduce the following special conditions as part of conditioning, and pressure control total cabin volume by that which would be the type certification basis for the IAI systems, must prevent the cabin altitude occupied by the furnishings and total number Ltd. Model Galaxy series airplanes: from exceeding the cabin altitude-time of people. 30022 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 5. Oxygen Equipment and Supply. (a) A continuous flow oxygen system must be provided for the passengers. (b) A quick-donning pressure demand mask with mask-mounted regulator must be provided for each pilot. Quick- donning from the stowed position must be demonstrated to show that the mask can be withdrawn from stowage and donned within 5 seconds. BILLING CODE 4910±13±M Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30023 30024 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30025 30026 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules BILLING CODE 4910±13±C Issued in Renton, Washington, on May 26, 1995. Darrell M. Pederson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service, ANM–100. [FR Doc. 95–13940 Filed 6–6–95; 8:45 am] BILLING CODE 4910±13±M Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30027 14 CFR Part 71 and returned to the commenter. All The FAA has determined that this communications received on or before proposed regulation only involves an [Airspace Docket No. 95±AAL±1] the closing date for comments will be established body of technical Proposed Establishment and considered before taking action on the regulations for which frequent and Alteration of Class E Airspace; Fort proposed rule. The proposal contained routine amendments are necessary to Yukon, AK in this notice may be changed in light keep them operationally current. of comments received. All comments Therefore, this proposed regulation—(1) AGENCY: Federal Aviation submitted will be available for Is not a ‘‘significant regulatory action’’ Administration (FAA), DOT. examination in the Rules Docket both under Executive Order 12866; (2) is not ACTION: Notice of proposed rulemaking. before and after the closing date for a ‘‘significant rule’’ under DOT comments. A report summarizing each Regulatory Policies and Procedures (44 SUMMARY: This notice proposes to substantive public contact with FAA FR 11034; February 26, 1979); and (3) establish a Class E2 airspace area and personnel concerned with this does not warrant preparation of a amend the Class E5 airspace area at Fort rulemaking will be filed in the docket. Regulatory Evaluation as the anticipated Yukon, Alaska. The intended effect of Availability of NPRM’s impact is so minimal. Since this is a this proposal is to provide controlled routine matter that will only affect air airspace for aircraft executing the Any person may obtain a copy of this traffic procedures and air navigation, it Standard Instrument Approach Notice of Proposed Rulemaking (NPRM) is certified that this proposed rule Procedure (SIAP) at the Fort Yukon by submitting a request to the Federal would not have a significant economic Airport. The area would be depicted on Aviation Administration, Manager, impact on a substantial number of small aeronautical charts. System Management Branch, AAL–530, # entities under the criteria of the DATES: Comments must be received on 222 West 7th Avenue, 14, Anchorage, Regulatory Flexibility Act. or before July 10, 1995. AK 99513–7587 or by calling (907) 271– ADDRESSES: Send comments on the 5898. Communications must identify List of Subjects in 14 CFR Part 71 proposal in triplicate to: Manager, the notice number of this NPRM. Airspace, Incorporation by reference, System Management Branch, AAL–530, Persons interested in being placed on Navigation (air). Federal Aviation Administration, mailing list for future NPRM’s should The Proposed Amendment Docket No. 95–AAL–1, 222 West 7th also request a copy of Advisory Circular Avenue, #14, Anchorage, AK 99513– No. 11–2A, which describes the Accordingly, pursuant to the 7587. application procedures. authority delegated to me, the Federal The official docket may be examined The Proposal Aviation Administration proposes to in the Office of the Assistant Chief amend part 71 of the Federal Aviation The FAA is considering an Counsel for the Alaskan Region at the Regulations (14 CFR part 71) as follows: amendment to part 71 of the Federal same address. An informal docket may also be Aviation Regulations (14 CFR part 71) to PART 71Ð[AMENDED] establish new Class E airspace and examined during normal business hours 1. The authority citation for part 71 at the address listed above. revise the existing Class E airspace to provide additional controlled airspace continues to read as follows: FOR FURTHER INFORMATION CONTACT: for Instrument Flight Rules (IFR) Robert C. Durand, AAL–531, 222 West Authority: 49 U.S.C. 40103, 40113, 40120; procedures at the Fort Yukon Airport. E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 7th Avenue #14, Anchorage, AK 99513– The FAA has recomputed the terminal Comp., p. 389; 49 U.S.C. 106(g); 14 CFR 7587; telephone: (907) 271–5898. airspace requirements for all the SIAP’s 11.69. SUPPLEMENTARY INFORMATION: and installed an Automated Weather § 71.1 [Amended] Observation Station (AWOS) at the Fort Comments Invited Yukon Airport. The additional airspace 2. The incorporation by reference in Interested parties are invited to would provide required controlled 14 CFR 71.1 of Federal Aviation participate in this proposed rulemaking airspace for IFR procedures at the Fort Administration Order 7400.9B, Airspace by submitting such written data, views, Yukon Airport. The area would be Designations and Reporting Points, or arguments as they may desire. depicted on appropriate aeronautical dated July 18, 1994, and effective Comments that provide the factual basis charts thereby enabling pilots to September 16, 1994, is amended as supporting the views and suggestions circumnavigate the area or otherwise follows: presented are particularly helpful in comply with IFR procedures. Class E Paragraph 6002 Class E Airspace Areas developing reasoned regulatory airspace designations for airspace areas Designated as a Surface Area for an Airport. decisions on the proposal. Comments designated as a surface area for an * * * * * are specifically invited on the overall airport are published in paragraph 6002 regulatory, aeronautical, economic, of FAA Order 7400.9B, dated July 18, AAL AK E2 Fort Yukon, AK [New] environmental, and energy-related 1994, and effective September 16, 1994, Fort Yukon Airport, AK aspects of the proposal. which is incorporated by reference in 14 (Lat. 66°34′18′′ N, long. 145°15′01′′ W) Communications should identify the CFR 71.1, and Class E airspace Yukon River, NDB airspace docket number and be designations for airspace areas (Lat. 66°34′48′′ N, long. 145°12′46′′ W) Fort Yukon VORTAC submitted in triplicate to the address extending upward from 700 feet or more ° ′ ′′ ° ′ ′′ listed above. Commenters wishing the above the surface of the earth are (Lat. 66 34 28 N, long. 145 16 36 W) FAA to acknowledge receipt of their published in paragraph 6005 of FAA That airspace extending upward from the comments on this notice must submit Order 7400.9B, dated July 18, 1994, and surface within a 4-mile radius of the Fort Yukon Airport and within 2.5 miles each with those comments a self-addressed, effective September 16, 1994, which is side of the Yukon River NDB 059° bearing stamped postcard on which the incorporated by reference in 14 CFR extending from the 4-mile radius to 8.2 miles following statement is made: 71.1. The Class E airspace designations northeast of the airport and within 3.3 miles ‘‘Comments to Docket No. 95–AAL–1.’’ listed in this document would be each side of the Fort Yukon VORTAC 075° The postcard will be date/time stamped published subsequently in the Order. radial extending from the 4-mile radius to 30028 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 11.6 miles east of the airport and within 3.3 Traffic Operations Branch, ACE–530, Avenue, SW, Washington, DC 20591, or miles each side of the Fort Yukon VORTAC Federal Aviation Administration, by calling (202) 267–3484. ° 213 radial extending from the 4-mile radius Docket No. 95–ACE–5, 601 East 12th Communications must identify the to 12.4 miles southwest of the airport. This Street, Kansas City, MO 64106. notice number of this NPRM. Persons Class E airspace area is effective during the specific dates and times established in The official docket may be examined interested in being placed on a mailing advance by Notice to Airmen. The effective in the Office of the Assistant Chief list for future NPRMs should also date and time will thereafter be continuously Counsel for the Central Region at the request a copy of Advisory Circular No. published in the Supplement Alaska same address between 9 a.m. and 3 11–2A, which describes the application (Airport/Facility Directory). p.m., Monday through Friday, except procedures. * * * * * Federal holidays. The Proposal An informal docket may also be Paragraph 6005 Class E Airspace Areas examined during normal business hours The FAA is considering an Extending From 700 Feet or More Above the amendment to part 71 of the Federal Surface of the Earth. in the office of the Manager, Air Traffic Operations Branch, Air Traffic Division, Aviation Regulations (14 CFR part 71) to * * * * * at the address listed above. provide additional controlled airspace AAL AK E5 Fort Yukon, AK [Revised] FOR FURTHER INFORMATION CONTACT: for a new Instrument Flight Rules (IFR) Fort Yukon Airport, AK Kathy Randolph, ACE–530c, Federal procedure at the Scott City Municipal (Lat. 66°34′18′′ N, long. 145°15′01′′ W) Aviation Administration, 601 East 12th Airport. The area would be depicted on Yukon River, NDB Street, Kansas City, Missouri 64106; appropriate aeronautical charts thereby ° ′ ′′ ° ′ ′′ (Lat. 66 34 48 N, long. 145 12 46 W) telephone: (816) 426–3408. enabling pilots to circumnavigate the Fort Yukon VORTAC area or otherwise comply with IFR (Lat. 66°34′28′′ N, long. 145°16′36′′ W) SUPPLEMENTARY INFORMATION: procedures. Class E airspace That airspace extending upward from 700 Comments Invited designations for airspace areas feet above the surface within a 6.5-mile extending upward from 700 feet or more radius of the Fort Yukon Airport and within Interested parties are invited to above the surface of the earth are ° 4 miles each side of the 213 radial of the participate in this proposed rulemaking published in paragraph 6005 of FAA Fort Yukon VORTAC extending from the 6.5- by submitting such written data, views, Order 7400.9B, dated July 18, 1994, and mile radius to 15.4 miles southwest of the or arguments as they may desire. effective September 16, 1994, which is airport and within 4 miles each side of the Comments that provide the factual basis 075° radial or the Fort Yukon VORTAC incorporated by reference in 14 CFR extending from the 6.5-mile radius to 14.6 supporting the views and suggestions 71.1. The Class E airspace designation miles east of the airport and within 3 miles presented are particularly helpful in listed in this document would be each side of the Yukon River NDB 059° developing reasoned regulatory published subsequently in the Order. bearing extending from the 6.5-mile radius to decisions on the proposal. Comments The FAA has determined that this 11.3 miles northeast of the airport. are specifically invited on the overall proposed regulation only involves an * * * * * regulatory, economic, environmental, established body of technical Issued in Anchorage, Alaska on May 12, and energy-related aspects of the regulations for which frequent and 1995. proposal. Communications should routine amendments are necessary to Trent S. Cummings, identify the airspace docket number and keep them operationally current. Acting Manager, Air Traffic Division, Alaskan be submitted in triplicate to the address Therefore, this proposed regulation—(1) Region. listed above. Commenters wishing the is not a ‘‘significant regulatory action’’ [FR Doc. 95–13936 Filed 6–6–95; 8:45 am] FAA to acknowledge receipt of their under Executive Order 12866; (2) is not BILLING CODE 4910±13±M comments on this notice must submit a ‘‘significant rule’’ under DOT with those comments a self-addressed, Regulatory Policies and Procedures (44 stamped postcard on which the FR 11034; February 26, 1979); and (3) 14 CFR Part 71 following statement is made: does not warrant preparation of a ‘‘Comments to Docket No. 95–ACE–5.’’ Regulatory Evaluation as the anticipated [Airspace Docket No. 95±ACE±5] The postcard will be date/time stamped impact is so minimal. Since this is a Proposed Amendment to Class E and returned to the commenter. All routine matter that will only affect air Airspace; Scott City, KS communications received on or before traffic procedures and air navigation, it the closing date for comments will be is certified that this proposed rule AGENCY: Federal Aviation considered before taking action on the would not have a significant economic Administration (FAA), DOT. proposed rule. The proposal contained impact on a substantial number of small ACTION: Notice of proposed rulemaking. in this notice may be changed in light entities under the criteria of the of comments received. All comments Regulatory Flexibility Act. SUMMARY: This notice proposes to submitted will be available for List of Subjects in 14 CFR Part 71 amend the Class E airspace area at Scott examination in the Rules Docket both City, KS. The development of a new before and after the closing date for Airspace, Incorporation by reference, standard instrument approach comments. A report summarizing each Navigation (air). procedure (SIAP) at Scott City substantive public contact with FAA The Proposed Amendment Municipal Airport, Scott City, KS, personnel concerned with this utilizing the Scott City NDB has made rulemaking will be filed in the docket. Accordingly, pursuant to the the proposal necessary. The intended authority delegated to me, the Federal effect of this proposal is to provide Availability of NPRMs Aviation Administration proposes to controlled airspace for aircraft executing Any person may obtain a copy of this amend part 71 of the Federal Aviation the SIAP at Scott City, KS. Notice of Proposed Rulemaking (NPRM) Regulations (14 CFR part 71) as follows: DATES: Comments must be received on by submitting a request to the Federal PART 71Ð[AMENDED] or before June 30, 1995. Aviation Administration, Office of ADDRESSES: Send comments on the Public Affairs, Attention: Public Inquiry 1. The authority citation for part 71 proposal in triplicate to: Manager, Air Center, APA–230, 800 Independence continues to read as follows: Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30029 Authority: 49 U.S.C. 40103, 40113, 40120; Aviation Administration, Office of the Availability of NPRM’s E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Assistant Chief Counsel, AGL–7, Rules Any person may obtain a copy of the Comp., p. 389; 49 U.S.C. 106(g); 14 CFR Docket No. 95–AGL–02, 2300 East 11.69. Notice of Proposed Rulemaking (NPRM) Devon Avenue, Des Plaines, Illinois by submitting a request to the Federal § 71.1 [Amended] 60018. Aviation Administration, Office of 2. The incorporation by reference in The official docket may be examined Public Affairs, Attention: Public Inquiry 14 CFR 71.1 of Federal Aviation in the Office of the Assistant Chief Center, APA–220, 800 Independence Administration Order 7400.9B, Airspace Counsel, Federal Aviation Avenue, SW., Washington, DC 20591, or Designations and Reporting Points, Administration, 2300 East Devon by calling (202) 267–3485. dated July 18, 1994, and effective Avenue, Des Plaines, Illinois. An Communications must identify the September 16, 1994, is amended as informal docket may also be examined notice number of this NPRM. Persons follows: during normal business hours at the Air interested in being placed on a mailing Traffic Division, System Management list for future NPRM’s should also Paragraph 6005 Class E Airspace Areas Branch, Federal Aviation request a copy of Advisory Circular No. Extending From 700 Feet or More Above the Administration, 2300 East Devon 11–2A, which describes the application Surface of the Earth Avenue, Des Plaines, Illinois. procedure. * * * * * FOR FURTHER INFORMATION CONTACT: The Proposal ACE IA E5 Scott City, KS [New] Jeffrey L. Griffith, Air Traffic Division, The FAA is considering an Scott City Municipal Airport, KS. System Management Branch, AGL–530, amendment to part 71 of the Federal (Lat. 38°28′30′′N, long. 100°53′05′′W) Federal Aviation Administration, 2300 Scott City NDB East Devon Avenue, Des Plaines, Illinois Aviation Regulations (14 CFR part 71) to (Lat. 38°28′49′′N, long. 100°53′18′′W) 60018, telephone (708) 294–7568. amend Class E airspace at Cadillac, MI; That airspace extending upward from 700 this proposal would provide adequate feet above the surface within 6.5-mile radius SUPPLEMENTARY INFORMATION: Class E airspace for IFR operators of the Scott City Municipal Airport and Comments Invited executing the GPS Runway 25 SIAP at within 2.5 miles each side of the 169° bearing Wexford County Airport. Controlled from the Scott City NDB extending from the Interested parties are invited to airspace extending from 700 to 1200 feet 6.5-mile radius to 7 miles south of the participate in this proposed rulemaking AGL is needed for aircraft executing the airport. by submitting such written data, views, approach. The intended effect of this * * * * * or arguments as they may desire. action is to provide segregation of Issued in Kansas City, MO, on May 8, 1995. Comments that provide the factual basis aircraft using instrument approach Herman J. Lyons, Jr., supporting the views and suggestions procedures in instrument conditions Acting Manager, Air Traffic Division, Central presented are particularly helpful in from other aircraft operating in visual Region. developing reasoned regulatory weather conditions. Aeronautical maps [FR Doc. 95–13937 Filed 6–6–95; 8:45 am] decisions on the proposal. Comments and charts would reflect the defined BILLING CODE 4910±13±M are specifically invited on the overall area which would enable pilots to regulatory, aeronautical, economic, circumnavigate the area in order to environmental, and energy-related comply with applicable visual flight 14 CFR Part 71 aspects of the proposal. rules requirements. [Airspace Docket No. 95±AGL±02] Communications should identify the The coordinates for this airspace airspace docket number and be docket are based on North American Proposed Amendment of Class E submitted in triplicate to the address Datum 83. Class E airspace designations Airspace; Cadillac, MI listed above. Commenters wishing the are published in Paragraph 6005 of FAA FAA to acknowledge receipt of their Order 7400.9B dated July 18, 1994, and AGENCY: Federal Aviation comments on this notice must submit effective September 16, 1994, which is Administration (FAA), DOT. with those comments a self-addressed, incorporated by reference in 14 CFR ACTION: Notice of proposed rulemaking. stamped postcard on which the 71.1. The Class E airspace designation following statement is made: listed in this document would be SUMMARY: This notice proposes to ‘‘Comments to Airspace Docket No. 95– published subsequently in the Order. amend Class E Airspace at Cadillac, MI. AGL–02.’’ The postcard will be date/ The FAA has determined that this A Global Positioning System (GPS) time stamped and returned to the proposed regulation only involves an standard instrument approach commenter. All communications established body of technical procedure (SIAP) to Runway 25 has received on or before the specified regulations for which frequent and been developed for the Wexford County closing date for comments will be routine amendments are necessary to Airport. Additional controlled airspace considered before taking action on the keep them operationally current. It, extending upward from 700 to 1200 feet proposed rule. The proposal contained therefore—(1) is not a ‘‘significant above ground level (AGL) is needed for in this notice may be changed in light regulatory action’’ under Executive aircraft executing the approach. The of comments received. All comments Order 12866; (2) is not a ‘‘significant intended effect of this proposal is to submitted will be available for rule’’ under DOT Regulatory Policies provide segregation of aircraft using examination in the Rules Docket, FAA, and Procedures (44 FR 11034; February instrument approach procedures in Great Lakes Region, Office of the 26, 1979); and (3) does not warrant instrument conditions from other Assistant Chief Counsel, 2300 East preparation of a regulatory evaluation as aircraft operating in visual weather Devon Avenue, Des Plaines, Illinois, the anticipated impact is so minimal. conditions. both before and after the closing date for Since this is a routine matter that will DATES: Comments must be received on comments. A report summarizing each only effect air traffic procedures and air or before July 19, 1995. substantive public contact with FAA navigation, it is certified that this rule, ADDRESSES: Send comments on the personnel concerned with this when promulgated, will not have a proposal in triplicate to: Federal rulemaking will be filed in the docket. significant economic impact on a 30030 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules substantial number of small entities ACTION: Advance notice of proposed Secretary to approve their own under the criteria of the Regulatory rulemaking with request for comments. programs to implement the ban on Flexibility Act. exports of state timber (State Program). SUMMARY: This notice announces the If the Secretary approves a State List of Subjects in 14 CFR Part 71 Department of Commerce’s intention to Program, it applies in that State in lieu issue regulations implementing the ban Airspace, Incorporation by reference, of the Federal Program. Navigation (air). on the export of unprocessed timber originating from non-Federal public Scope of the Export Ban The Proposed Amendment lands in 17 western states pursuant to In consideration of the foregoing, the the Forest Resources Conservation and Pursuant to the FRCSRA, on August Federal Aviation Administration Shortage Relief Act of 1990, as amended 23, 1993, the Secretary of Commerce proposes to amend 14 CFR part 71 as (FRCSRA). This notice delineates the signed a General Order (Order) follows: actions the Department is considering prohibiting the export of State timber taking to implement the FRCSRA and effective June 1, 1993 (58 F.R. 55038). PART 71Ð[AMENDED] requests public comments on these This Order affects Arizona, California, actions. Colorado, Idaho, Kansas, Montana, 1. The authority citation for 14 CFR DATES: part 71 continues to read as follows: Comments must be received by Nebraska, New Mexico, Nevada, North July 7, 1995. Dakota, Oklahoma, Oregon, South Authority: 49 U.S.C. app. 1348(a), 1354(a), ADDRESSES: Written comments (three Dakota, Texas, Utah, Washington, and 1510; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 1963 Comp., p. 389; 49 U.S.C. 106(g); 14 CFR copies) should be sent to: Steven C. Wyoming (the affected States). The 11.69. Goldman, Acting Director, Office of export ban, however, excludes public Chemical and Biological Controls and lands in the State of Alaska and lands § 71.1 [Amended] Treaty Compliance, Bureau of Export held in trust by any Federal or State 2. The incorporation by reference in Administration, U.S. Department of official or agency for a recognized 14 CFR 71.1 of the Federal Aviation Commerce, Washington, D.C. 20230, Indian tribe or for any member of such Administration Order 7400.9B, Airspace Telephone: (202) 482–3825, Fax (202) tribe. Designations and Reporting Points, 482–0751. The Order includes restrictions on dated July 18, 1994, and effective FOR FURTHER INFORMATION CONTACT: who may purchase state timber to September 16, 1994, is amended as Bernard Kritzer, Manager, Short Supply prevent the direct or indirect follows: Program, Office of Chemical and substitution of such timber for exported Biological Controls and Treaty Paragraph 6005 Class E Airspace Areas private timber. It also provides Compliance, Bureau of Export Extending upward From 700 Feet or exemptions for certain prior contracts. More Above the Surface of the Earth. Administration, U.S. Department of For States with annual sales greater than * * * * * Commerce, Washington, D.C. 20230, Telephone: (202) 482–0894, Fax (202) 400 million board feet (MBF), the Order AGL MI E5 Cadillac, MI [Revised] 482–0751. expires December 31, 1995. For States (lat. 44°16′31′′ N., long. 85°25′08′′ W.) with annual sales of less than 400 MBF, SUPPLEMENTARY INFORMATION: That airspace extending upward from 700 the Order remains in effect feet above the surface within a 7.4 mile Background permanently. radius of the Wexford County Airport and Section 491 of the Forest Resources For States with annual sales of more within 3.9 miles either side of the 246 degree than 400 MBF, section 491 (b)(2)(B) of bearing from the airport extending from the Conservation and Shortage Relief Act of 7.4 mile radius to 8.3 miles southwest of the 1990, (Pub. L. 101–382, 16 U.S.C. 620 et the FRCSRA requires the Secretary to airport, and within 1.7 miles either side of seq.) (the Act), requires the Secretary of issue an Order, not later than September the 062 degree bearing from the airport Commerce to issue orders restricting the 30, 1995, for all periods on or after extending from the 7.4 mile radius to 10.3 export of unprocessed timber January 1, 1996, prohibiting the export miles northeast of the airport. originating from non-Federal public of the lesser of 400 MBF or the annual * * * * * lands located west of the 100th sales volume in that State of Issued in Des Plaines, Illinois on May 22, meridian in the contiguous United unprocessed timber originating from 1995. States (state timber). Prior to its public lands. Roger Wall, amendment in 1993, the Act required The FRCSRA allows the governor of Manager, Air Traffic Division. the affected States to issue and each affected State to request that the implement regulations administering [FR Doc. 95–13939 Filed 6–6–95; 8:45 am] Secretary of Commerce approve a State the export ban. On May 4, 1993, the U.S. BILLING CODE 4910±13±M Program for the administration of its Ninth Circuit Court of Appeals held own state timber export controls in lieu unconstitutional the provisions of the Act that required the States to of the Federal Program. On August 17, DEPARTMENT OF COMMERCE implement the Act’s prohibitions. 1993, the Secretary authorized On July 1, 1993, the President signed Washington to continue administering Bureau of Export Administration into law Public Law 103–45, the Forest its pre-existing export control program Resources Conservation and Shortage on an interim basis. On March 10, 1994, 15 CFR Part 792 Relief Amendments Act of 1993 (the the Secretary authorized Oregon to Amendments Act). The Amendments continue administering its pre-existing [Docket No. 950525141±5141±01] Act reassigned the export control export control program on an interim basis. On June 1, 1995, the Secretary Administration of State Log Exports implementation responsibilities from gave final authorization to Oregon and Ban the States to the Federal government (Federal Program), specifically to the Washington to administer their pre- AGENCY: Bureau of Export Secretary of Commerce. It also allows existing programs pursuant to Section Administration, Commerce. individual states to petition the 491(d) of the FRCSRA. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30031 Proposed Elements of the Federal acknowledgements, and agreements Petitions for Minimizing the Reporting Program referred to in paragraphs (3)(a)(i) and Burdens on Those States That Do Not This notice announces the (3)(a)(ii). Export Timber From Public Lands Department of Commerce’s intention to (b) Documenting the acquisition of The Department is aware that a issue regulations implementing the ban unprocessed State timber. Each person number of the states subject to the on the export of state timber originating who directly or indirectly acquires or export ban have very small state timber in the 15 States identified in the Order processes State timber shall report the sales volumes or do not sell state timber which have not had programs approved receipt and disposition of the timber to at all. The Department also is aware that or had FRCSRA’s prohibitions modified the Secretary of Commerce as follows: some states do not have any or removed pursuant to Section 491(h). unprocessed timber exported from state (i) the source of the State timber Before drafting regulations, however, public lands. The Department is acquired. the Department seeks comments from prepared to consider requests from such interested parties on the following (ii) from whom the timber was states for removal or modification of proposed elements of the Federal acquired and to whom the timber was state restrictions, including reporting Program: sold, transferred or otherwise conveyed; requirements of the Federal Program, 1. Procedures to identify and mark and pursuant to section 491(h) of the State timber. Pursuant to section (iii) an accounting by source, in net FRCSRA. 491(c)(1) of the FRCSRA, the board feet Scribner, or cubic feet, of the Particularly Useful Comments Department proposes to require owners/ volume of State timber acquired, the The Department invites written purchasers of State timber: volume domestically processed by the (a) To identify and paint, by means comments from interested parties that purchaser and the volume sold for may assist it in implementing the described at subparagraphs (b) and (c) of domestic processing. this paragraph, State timber (sometimes Federal Program. Specifically, hereafter ‘‘logs requiring domestic This requirement would apply to all information concerning the following processing’’); intermediate parties until a purchaser would be particularly useful: (b) To use highway yellow paint to sends the logs to a domestic sawmill 1. Under what circumstance should identify logs requiring domestic and they are processed; the Secretary include substitution as part of the rules for the Federal processing. Before removal from the 3. Procedures for assessing civil harvest area, the owner must paint each Program? penalties and applying administrative 2. Are the Department’s procedures log at each end with a spot of highway remedies for violations of the FRCSRA. for identifying and marking export- yellow paint not less than three inches Pursuant to Section 492(c)(1)(B), if the restricted State timber adequate to track square; Secretary of Commerce finds, on the such timber and prevent unauthorized (c) To retain the identification placed record and after an opportunity for a export? Should the Department require on an unprocessed log until the log is hearing, that a person has exported or persons/purchasers of State timber to domestically processed. If a log is cut caused to be exported State timber with hammer brand a log on each end with into two or more segments before willful disregard of the Secretary’s a brand approved for use by the Forest processing, the owner is required to Orders, the Secretary may assess a civil Supervisor of the State Forest in each identify each segment in the same penalty on such person. The civil affected State? manner as the original log. The marking penalty may be up to $500,000 for each 3. Are there more cost-effective ways requirement would include all State violation or 3 times the gross value of to identify and track export-restricted timber; State timber? 2. Procedures for documenting unprocessed timber involved in the violation, whichever amount is greater. 4. Is the Department’s annual transfers of State timber. Pursuant to reporting requirement sufficient to track Sections 492(a)(3) and 492(a)(4) of the Pursuant to Section 492(c)(2)(B), if the the flow of State timber? FRCSRA, the Department proposes to Secretary of Commerce finds on the require the following reporting record and after an opportunity for a Comment Procedures procedures for the receipt and hearing, that a person has violated any The Department will consider public disposition of the unprocessed public provision of the FRCSRA or any comments in the development of timber: regulation issued under the FRCSRA proposed regulations. The Department (a) Documenting the transfer of relating to the export of unprocessed encourages interested persons who wish unprocessed State timber. Each person timber originating from public lands, to comment to do so at the earliest who transfers to another person State whether or not the violation caused the possible time to permit the fullest timber must, before completing the export of unprocessed timber from consideration of their views. transfer: public lands in violation of the The following procedures will apply (i) Provide to the other person a FRCSRA, the Secretary may impose a to any comments submitted pursuant to written document identifying the public civil penalty of up to $75,000 for each this procedure: lands from which the timber originated violation or up to $500,000 depending 1. Interested parties are invited to and giving notice to the person of the on the nature of the violation. submit written comments (3 copies), prohibition against exporting the State opinions, data, information, or advice timber or substituting it for exported 4. Definition. Pursuant to Section with respect to this notice to the address private timber; 493(7) of the FRCSRA, the term above by the dates specified above. (ii) receive from the purchaser written unprocessed timber means trees or 2. The Department will consider all acknowledgement of the notice, and a portions of trees or other roundwood comments received by the close of the written agreement that the recipient of not processed to standards and comment period in developing the timber will comply with all the specifications suitable for end product proposed regulations. While comments requirements of the FRCSRA; and use. It does not include among other received after the end of the comment (iii) provide annually to the Secretary things chips, pulp, or pulp products and period will be considered if possible, of Commerce copies of all notices, pulp logs or cull logs. this cannot be assured. 30032 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 3. All public comments on this DEPARTMENT OF HEALTH AND Amendments of 1976 (the amendments) advanced notice of proposed HUMAN SERVICES (Pub. L. 94–295), and devices marketed rulemaking will be a matter of public on or after that date that are record and will be available for public Food and Drug Administration substantially equivalent to such devices, inspection and copying. have been classified by FDA. For the 21 CFR Part 872 (Communications from agencies of the sake of convenience, this preamble United States Government or foreign [Docket No. 95N±0033] refers to both the devices that were on governments will not be made available the market before May 28, 1976, and the for public inspection). Dental Devices; Effective Date of substantially equivalent devices that Requirement for Premarket Approval were marketed on or after that date as 4. In the interest of accuracy and of Endodontic Dry Heat Sterilizer ‘‘preamendments devices.’’ Section 515(b)(1) of the act (21 U.S.C. completeness, the Department requires AGENCY: Food and Drug Administration, comments in written form. Oral 360e(b)(1)) establishes the requirement HHS. that a preamendments device that FDA comments must be followed by written ACTION: Proposed rule; opportunity to has classified into class III is subject to memoranda which will also be a matter request a change in classification. premarket approval. A preamendments of public record and will be available class III device may be commercially for public review and copying. SUMMARY: The Food and Drug distributed without an approved PMA Administration (FDA) is proposing to or notice of completion of a PDP until 5. The Department will not accept require the filing of a premarket 90 days after FDA issues a final rule public comments accompanied by a approval application (PMA) or a notice requiring premarket approval for the request that part or all of the material be of completion of a product development device, or 30 months after final treated confidentially because of its protocol (PDP) for the endodontic dry classification of the device under business proprietary nature or for any heat sterilizer, a medical device. The section 513 of the act, whichever is other reason. The Department will agency also is summarizing its proposed later. Also, a preamendments device, return such comments and materials to findings regarding the degree of risk of subject to the rulemaking procedure the person submitting the comments illness or injury designed to be under section 515(b) of the act, is not and will not consider them in the eliminated or reduced by requiring the required to have an approved development of final regulations, and; device to meet the statute’s approval investigational device exemption (IDE) requirements, and the benefits to the (21 CFR part 812) contemporaneous 6. The comments received in response public from use of the device. In with its interstate distribution until the to this notice will be maintained in the addition, FDA is announcing the date identified by FDA in the final rule Bureau of Export Administration, opportunity for interested persons to requiring the submission of a PMA for Freedom of Information Records request the agency to change the the device. Inspection Facility, Room 4525, classification of the device based on Section 515(b)(2)(A) of the act Department of Commerce, 14th Street new information. provides that a proceeding to issue a and Pennsylvania Avenue, N.W., DATES: Written comments by September final rule to require premarket approval Washington, DC 20239. Interested 5, 1995; requests for a change in shall be initiated by publication of a parties may inspect and copy records in classification by June 22, 1995. FDA notice of proposed rulemaking this facility, including written public intends that, if a final rule based on this containing: (1) The proposed rule; (2) comments and memoranda proposed rule is issued, PMA’s will be proposed findings with respect to the summarizing the substance of oral required to be submitted within 90 days degree of risk of illness or injury communications, in accordance with of the effective date of the final rule. designed to be eliminated or reduced by regulations published in Part 4 of Title ADDRESSES: Submit written comments requiring the device to have an approved PMA or a declared completed 15 of the Code of Federal Regulations. or requests for a change in classification PDP and the benefit to the public from Information about the inspection and to the Dockets Management Branch the use of the device; (3) an opportunity copying of records may be obtained (HFA–305), Food and Drug for the submission of comments on the from Margaret Cornejo, Bureau of Export Administration, rm. 1–23, 12420 Parklawn Dr., Rockville, MD 20857. proposed rule and the proposed Administration, Management Analyst, findings; and (4) an opportunity to FOR FURTHER INFORMATION CONTACT: at the above address or by calling (202) request a change in the classification of 482–5653. Joseph M. Sheehan, Center for Devices the device based on new information and Radiological Health (HFZ–84), Food relevant to the classification of the Rulemaking Requirements and Drug Administration, 2094 Gaither device. Rd., Rockville, MD 20850, 301–594– Section 515(b)(2)(B) of the act 4765. The rule which is likely to be provides that if FDA receives a request proposed based on this notice was SUPPLEMENTARY INFORMATION: for a change in the classification of the device within 15 days of the publication determined to be significant under I. Background Executive Order 12866. of the notice, FDA shall, within 60 days Section 513 of the Federal Food, Drug, of the publication of the notice, consult Dated: June 2, 1995. and Cosmetic Act (the act) (21 U.S.C. with the appropriate FDA advisory 360c) requires the classification of committee and publish a notice denying Sue E. Eckert, medical devices into one of three the request for change of classification regulatory classes: Class I (general or announcing its intent to initiate a Assistant Secretary for Export controls), class II (special controls), and proceeding to reclassify the device Administration. class III (premarket approval). under section 513(e) of the act. If FDA [FR Doc. 95–14038 Filed 6–6–95; 8:45 am] Generally, devices that were on the does not initiate such a proceeding, market before May 28, 1976, the date of section 515(b)(3) of the act provides that BILLING CODE 3510±DT±P enactment of the Medical Device FDA shall, after the close of the Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30033 comment period on the proposed rule A. Classification of Endodontic Dry Heat endodontic dry heat sterilizer during and consideration of any comments Sterilizers FDA’s review of the PMA or notice of received, issue a final rule to require In the Federal Register of August 12, completion of the PDP. FDA intends to premarket approval, or publish a notice 1987 (52 FR 30082), FDA issued a final review any PMA for the device within terminating the proceeding. If FDA rule (§ 872.6730 (21 CFR 872.6730)) 180 days, and any notice of completion terminates the proceeding, FDA is classifying the endodontic dry heat of a PDP for the device within 90 days required to initiate reclassification of sterilizer into class III. The preamble to of the date of filing. FDA cautions that, the device under section 513(e) of the the proposal to classify the device under section 515(d)(1)(B)(i) of the act, FDA may not enter into an agreement to act, unless the reason for termination is published in the Federal Register of extend the review period for a PMA that the device is a banned device under December 30, 1980 (45 FR 86155), beyond 180 days unless the agency section 516 of the act (21 U.S.C. 360f). included the recommendation of the finds that ‘‘ * * * the continued Dental Device Classification Panel (the If a proposed rule to require availability of the device is necessary for panel), of the Medical Devices Advisory premarket approval for a the public health.’’ preamendments device is made final, Committee, an FDA advisory committee, FDA intends that, under § 812.2(d), regarding the classification of the section 501(f)(2)(B) of the act (21 U.S.C. the preamble to any final rule based on device. 351(f)(2)(B)) requires that a PMA or a this proposal will state that, as of the The panel recommended that the date on which a PMA or a notice of notice of completion of a PDP for any device be in class III (premarket such device be filed within 90 days of completion of a PDP is required to be approval) because the device presented filed, the exemptions in § 812.2 (c)(1) the date of issuance of the final rule or an unreasonable risk of illness or injury. 30 months after final classification of and (c)(2) from the requirements of the According to the panel, the devices IDE regulations for preamendments the device under section 513 of the act, failed to sterilize adequately various whichever is later. If a PMA or a notice class III devices will cease to apply to endodontic and dental instruments. The any endodontic dry heat sterilizer of completion of a PDP is not filed by panel felt that the failures could be the which is: (1) Not legally on the market the later of the two dates, commercial result of: (1) The device not reaching on or before that date; (2) legally on the distribution of the device is required to and maintaining an adequate market on or before that date but for cease. The device may, however, be temperature because of a faulty which a PMA or notice of completion of distributed for investigational use if the thermostat or (2) the result of unequal a PDP is not filed by that date; or (3) for manufacturer, importer, or other heat distribution by the glass beads which PMA approval has been denied sponsor of the device complies with the throughout the well despite sufficient or withdrawn. IDE regulations. If a PMA or a notice of heat. The panel believed that it was not If a PMA or a notice of completion of completion of a PDP is not filed by the possible to establish an adequate a PDP for the endodontic dry heat later of the two dates, and no IDE is in performance standard for the device sterilizer is not filed with FDA within effect, the device is deemed to be because satisfactory performance had 90 days after the date of issuance of any adulterated within the meaning of never been demonstrated. The panel final rule requiring premarket approval section 501(f)(1)(A) of the act, and recommended the device to be subject for the device, commercial distribution subject to seizure and condemnation to premarket approval to assure that of the device must cease. The device under section 304 of the act (21 U.S.C. manufacturers of the device may be distributed for investigational 334) if its distribution continues. demonstrate satisfactory performance use only if the requirements of the IDE and that further study was necessary to Shipment of the device in interstate regulations are met. FDA would not determine the causes of the device’s commerce will be subject to injunction consider an investigation of an ineffectiveness. under section 302 of the act (21 U.S.C. endodontic glass bead sterilizer to pose FDA agreed with the panel’s a significant risk as defined in the IDE 332), and the individuals responsible for recommendation that endodontic dry regulation provided that instruments such shipment will be subject to heat sterilizers be classified into class processed in the device are terminally prosecution under section 303 of the act III. FDA believed that there was an sterilized by a sterilization process (21 U.S.C. 333). FDA has in the past unreasonable risk of illness or injury which can be biologically monitored, requested that manufacturers take action because of the potential failure of the such as steam, ethylene oxide, or dry to prevent the further use of devices for device to sterilize dental instruments heat. If the investigation cannot be so which no PMA has been filed and may adequately. FDA believed that there was designed, the investigation would determine that such a request is inadequate information to determine if constitute a significant risk. The appropriate for endodontic dry heat general controls or a performance requirements for significant risk devices sterilizers. standard would provide reasonable include submitting an IDE application The act does not permit an extension assurance of safety and effectiveness. to FDA for its review and approval. An of the 90-day period after issuance of a B. Dates New Requirements Apply approved IDE is required to be in effect final rule within which an application before an investigation of the device In accordance with section 515(b) of or a notice is required to be filed. The may be initiated or continued. FDA, the act, FDA is proposing to require that House Report on the amendments states therefore, cautions that IDE applications a PMA or a notice of completion of a that: should be submitted to FDA at least 30 PDP be filed with the agency for the days before the end of the 90-day period the thirty month ‘grace period’ afforded endodontic dry heat sterilizer within 90 after the final rule is published to avoid after classification of a device into class III days after issuance of any final rule interrupting investigations. * * * is sufficient time for manufacturers and based on this proposal. An applicant importers to develop the data and conduct whose device was legally in commercial C. Description of Device the investigations necessary to support an distribution before May 28, 1976, or has Endodontic dry heat sterilizers are application for premarket approval. been found by FDA to be substantially small electrically heated dry heat (H. Rept. 94–853, 94th Cong., 2d sess. 42 equivalent to such a device, will be sterilizers with a central well containing (1976).) permitted to continue marketing the a heat transfer medium. The types of 30034 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules heat transfer media used in these units well the temperature varied by as much literature that glass bead sterilizers have have included glass beads, molten as 10 °C over time (Ref. 5). According been shown to be effective only with metal, metal beads, and salt. The to Ingle, glass bead sterilizers should not small instruments that can be imbedded instruments which are to be sterilized be used as a substitute for dry heat into the heat transfer media and that are inserted directly into the heat convection or steam sterilizers because their effectiveness has not been transfer medium. The units are defined of the temperature variations (Ref. 7). demonstrated for instruments of larger in § 872.6730 as devices used to sterilize 2. Lack of Methods to Monitor the bulk. The insertion of large instruments endodontic and other dental Recommended Exposure Times for would reduce the temperature of the instruments by the application of dry Sterilization of the Instruments glass beads below the minimum heat which is supplied by the glass temperature required for sterilization beads which have been heated by The manufacturers’ recommended exposure times for sterilization of (Ref. 1). Heat conduction in a large, electricity. partially imbedded device would be The proposed rule to require instruments vary from as short as 2 variable. premarket approval of the endodontic seconds to 45 seconds for sterilizers dry heat sterilizer applies to devices that whose purported operating Precleaning of the instruments before were being commercially distributed temperatures are from 218 °C to 260 °C. insertion into the glass bead sterilizer is before May 28, 1976, and to devices that However, location of the instruments in critical to the effectiveness of the were introduced into commercial the well, the size and mass of the device. Engelhardt demonstrated that if distribution since that date which have instruments, the number of instruments, endodontic instruments were been found to be substantially and the shape of the instruments must contaminated with a protein load equivalent to predicate endodontic dry be factored into the amount of time (blood), the time required for heat sterilizers. required for sterilization. Larger sterilization was more than doubled. instruments composed of more metal Such adverse conditions can easily be D. Proposed Findings With Respect to take more time to heat than smaller found in infected or gangrenous pulp. Risks and Benefits instruments. Koehler reported that the Spores, which are more resistant to As required by section 515(b) of the time required to raise an instrument’s sterilization processes than vegetative act, FDA is publishing its proposed temperature was dependent upon its organisms, have been found in the oral findings regarding: (1) The degree of risk size. Small instruments such as root cavity and cultured from pulp material of illness or injury designed to be canal files heated rapidly, while large (Ref. 4). eliminated or reduced by requiring instruments such as cotton pliers never endodontic dry heat sterilizers to have reached the specified operating 3. Lack of Methods to Monitor the an approved PMA or a declared temperature (Ref. 6). Corner reported Performance/Sterilization Efficacy of the completed PDP; and (2) the benefits to that instruments such as forceps, Device the public from the use of the device. scalpels, spatulas, and scissors sterilized in rapid succession caused the There are no identified methods for E. Risk Factors temperature in the well to drop an the routine monitoring of the The panel identified the primary risk average of 7 °C for each instrument and sterilization efficacy of the endodontic to health as infection by stating that that it took 15 minutes for the dry heat sterilizer such as the ones ‘‘The inability of the device to sterilize temperature of the well to recover (Ref. which exist with the traditional adequately endodontic and other dental 2). Smith reported sterilization times of sterilization methods, i.e., steam instruments may lead to transmission of 15 seconds to kill orthodontic bands autoclaves, hot air dry heat sterilizers, microorganisms among patients and contaminated with Staphylococcus or ethylene oxide sterilizers. Chemical subsequent spread of infection.’’ albus and 45 seconds for bands and biological indicators are available A review of the literature on contaminated with Bacillus subtilis for routine monitoring of the efficacy of endodontic dry heat sterilizers has spores; but if five bands were sterilized the cycle parameters and for the identified the following problems simultaneously, then the sterilization validation of the process specifications associated with the use of these devices times doubled (Ref. 10). Fahid reported for these traditional sterilizers. The data which contribute to the inability of that a No. 60 file, which was the largest in the literature, as noted above, suggest endodontic dry heat sterilizers to file tested in the study, was the most that the user can not be assured that sterilize instruments, including general difficult to sterilize. The difficulty was instruments inserted into an endodontic medical instruments. attributed to two factors: the large mass dry heat sterilizer will be reliably of the file, and the air trapped in the exposed to the minimum cycle 1. Temperature Variation Within the deep trough since air is a poor heat Well parameters required for sterilization, conductor (Ref. 5). Engelhardt described i.e., exposure of the device to a set There are many reports in the sterilization times for endodontic temperature for a specified time. literature describing the temperature instruments ranging from 15 to more variation found within the wells of glass than 100 seconds in glass bead 4. Variability of the Warm-up Times for bead sterilizers (Refs. 2, 3, 4, 7, 10, and sterilizers, and in some cases, the 100 Glass Bead Sterilizers 11). Engelhardt et al. (Ref. 4) measured seconds were not sufficient to achieve the temperature distribution in four sterilization (Ref. 4). Schutt et al. found Reported warm-up times for these brands of glass bead sterilizers at two that it took 60 seconds to sterilize dental devices range from 15 minutes to 50 different sites from the center and at six burs. He also emphasized that the minutes with the average of 15–20 different depths in the well. He reported temperature at the depth of the minutes. However, Corner reported that that the temperature within the well immersion of the burs should be it took up to 30 minutes for the varied significantly depending upon measured and that the minimum temperature of the glass beads to location. The temperature was highest temperature should be at least 175 °C at stabilize even though the manufacturer closest to the wall and midway down 2 millimeters (mm) below the surface claimed that the device reached from the surface (Ref. 4). Corner also and 240 °C at 15 mm below the surface operating temperature within 10 reported that near the periphery of the (Ref. 9). It has been reported in the minutes (Ref. 2). Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30035 5. Maintenance of Sterility After difficult to determine and must be special controls that may now be Removal From the Device confirmed independently for each applied to class II devices under the The instructions for use for most of instrument. Also determination of the Safe Medical Devices Act of 1990 also the devices do not instruct the user on sterilization exposure time is dependent would not provide such assurance. FDA the proper procedure to remove upon instrument size and mass. As has weighed the probable risks and instruments from the device, and on Koehler noted, some instruments never benefits to the public health from the how to maintain sterility of the reach the appropriate temperature use of the device and believes that the instruments or the processed portion of because of their size and mass (Ref. 6); literature reports and other information the instrument during the cool down and, as noted in the American Dental discussed above present evidence of period. There also exists the possibility Association’s ‘‘Accepted Dental significant risks associated with use of that the heat transfer medium could Therapeutics,’’ 40th ed., endodontic dry the device. These risks must be serve as a source of contamination heat sterilizers are not appropriate for addressed by the manufacturers of between patients. Because of the large bulk instruments (Ref. 1). endodontic dry heat sterilizers. FDA reported temperature gradients within Review of the claims being made for believes that the endodontic dry heat the wells, there exists the possibility these devices suggests that should undergo premarket approval to that heat resistant microorganisms could manufacturers are expanding the claims establish effectiveness and to determine survive in the cooler regions near the beyond those originally defined in whether the benefits to the patient are top of the well and contaminate the § 872.6730. The claims have been sufficient to outweigh any risk. expanded to include the sterilization of instruments used upon the next patient II. PMA Requirements as they are removed from the well. general medical instruments and Furthermore, because endodontic dry electrolysis and acupuncture needles, A PMA for this device must include heat sterilizers only process that portion and to devices not regulated by FDA the information required by section of the instrument which has been such as manicurist’s instruments. The 515(c)(1) of the act. Such a PMA should inserted into the glass beads, there is the claims imply that these devices can be also include a detailed discussion of the potential of contaminating a sterile field used as a substitute for the traditional risks identified above, as well as a with a device which had not been methods of sterilization. Scarlett noted discussion of the effectiveness of the properly processed. that endodontic dry heat sterilizers are device for which premarket approval is not sterilizers, but are decontaminating sought. 6. Possibility of the Heat Transfer devices and that they should not be A PMA should include valid Medium Remaining Upon The Devices used to sterilize instruments between scientific evidence obtained from well- Occasionally the heat transfer media patients (Ref. 8). No system exists for (1) controlled studies, with detailed data, in has been observed to adhere to wet Monitoring the exposure of the order to provide reasonable assurance of instruments. If the particles are not instrument to sterilization conditions, or the safety and effectiveness of the detected before the devices are inserted (2) demonstrating that the sterilization endodontic dry heat sterilizer for its into the site, then they could cause exposure parameters have been intended use. The data must include the blockage of the wound site or other achieved within the well. Only the following information: adverse effects. This would cause portion of the instrument which is a. A general description of the inserted into the heat transfer medium significant problems if the heat transfer sterilizer including its specifications, has the potential of being sterilized; the media were glass beads or molten metal process parameters and process portion which is not inserted into the (Ref. 1). monitors; glass beads is not sterilized. The use of b. An overview of the sterilization F. Benefit of the Devices endodontic dry heat sterilizers with process with accompanying charts, The endodontic dry heat sterilizer general medical instruments and with graphs, or other visuals explaining all could be used to decontaminate the implication as a substitute parameters; endodontic instruments during a sterilization method raises serious safety procedure on a single patient provided and effectiveness questions which the c. A description of any test packs used the instruments are properly cleaned to manufacturers of these devices have not in validating the performance of the remove organic debris before insertion adequately addressed. There is the endodontic dry heat sterilizer and in into the unit. In theory the number of serious risk of infection through the use routine monitoring of the device; microorganisms that would be of inadequately processed instruments. d. Physical tests which demonstrate introduced into the same site or into a FDA believes that sufficient that the sterilizer achieves and new site on the same patient during a information may exist regarding the maintains the physical process lethality single procedure would be reduced. risks and benefits associated with the conditions within specifications. The Once the procedure is over, the device, but the information must be testing should describe how the process instruments should be processed using assembled in such a way as to enable parameters and specifications were traditional methods of decontamination FDA to determine if the information determined; and sterilization before use in the next provides reasonable assurance of the e. The microbiological performance patient. safety and effectiveness of the device for tests must demonstrate that the device its intended use as defined in 21 CFR can sterilize to an acceptable G. Need for Information for Risk/Benefit 860.7. sterilization assurance level all medical Assessment of the Device FDA classified the endodontic dry products identified in the labeling when The data in the literature indicate the heat sterilizer into class III because it used in accordance with the directions lack of uniform sterilization parameters determined that insufficient information for use. The tests should be consistent among the various glass bead sterilizers existed to determine that general with those used to validate sterilization which have been marketed. Because of controls would provide reasonable processes including simulated and the temperature variation found within assurance of the safety and effectiveness actual use tests; the wells of glass bead sterilizers, of the device or to establish a f. Material compatibility tests must exposure of an instrument to an performance standard to provide such show that the medical devices identified adequate sterilizing temperature is assurance. FDA has determined that the in the labeling are compatible with the 30036 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules sterilization process of the endodontic IV. Opportunity to Reguest a Change in 6. Koehler, H. M., and J. J. Hefferren, ‘‘Time- dry heat sterilizer; and Classification Temperature Relations of Dental Instruments Heated in Root-Canal g. Final qualification tests from at Before requiring the filing of a PMA Instrument Sterilizers,’’ Journal of Dental least three consecutive runs under worst or a notice of completion of a PDP for Research, 41:182–195, 1962. case loading conditions as indicated in a device, FDA is required by section 515 7. Ingle, J. I., Endodontics, 3d Ed., the labeling. (b)(2)(A)(i) through (b)(2)(A)(iv) of the Philadelphia, Lea & Febiger, pp. 615– Additional information about the act and 21 CFR 860.132 to provide an 616. opportunity for interested persons to 8. Jakush, J., ‘‘Infection Control Procedures validation of sterilization processes can and Products: Cautions and Common be found in: ‘‘Guidance on Premarket request a change in the classification of Sense,’’ Journal of The American Dental Notification (510(k)) Submissions for the device based on new information Association, 117:293–301, 1988. Sterilizers Intended for Use in Health relevant to its classification. Any 9. Schutt, R. W., and W. J. Starsiak, ‘‘Glass Care Facilities’’ (available upon request proceeding to reclassify the device will Bead Sterilization of Surgical Dental from the Center for Devices and be under the authority of section 513(e) Burs,’’ International Journal of Oral and Radiological Health, Division of Small of the act. Maxillofacial Surgery, 19:250–251, 1990. Manufacturers Assistance (HFZ–220), A request for a change in the 10. Smith, G. E., ‘‘Glass Bead Sterilization of Food and Drug Administration, 1350 classification of the endodontic dry heat Orthodontic Bands,’’ American Journal of Orthodontics Dentofacial Orthopedics, Piccard Dr., Rockville, MD 20850); the sterilizer is to be in the form of a 90:243–249, 1986. American Association of Medical reclassification petition containing the 11. Windeler, A. S., and R. G. Walter, ‘‘The Instrumentation’s (AAMI) voluntary information required by § 860.123 (21 Sporicidal Activity of Glass Beads standards describing the validation CFR 860.123), including new Sterilizers,’’ Journal of Endodontics, requirements for sterilization processes; information relevant to the classification 1:273–275, 1975. and the publication entitled ‘‘Sterile of the device, and shall, under section VI. Environmental Impact Medical Devices, A GMP Workshop 515(b)(2)(B) of the act, be submitted by Manual, 4th Ed., HHS Publication (FDA) June 22, 1995. The agency has determined under 21 84–4147. The agency advises that, to ensure CFR 25.24(a)(8) that this action is of a type that does not individually or The PMA should contain a detailed timely filing of any such petition, any cumulatively have a significant effect on discussion with supporting simulated- request should be submitted to the the human environment. Therefore, and in-use studies, as described in the Dockets Management Branch (address neither an environmental assessment above guidance, of: (1) All risks that above) and not to the address provided nor an environmental impact statement have been identified in this proposed in § 860.123(b)(1). If a timely request for is required. rule; and (2) the effectiveness of the a change in the classification of the specific endodontic dry heat sterilizer endodontic dry heat sterilizer is VII. Analysis of Impacts that is the subject of the application. In submitted, the agency will, by August 7, 1995, after consultation with the FDA has examined the impacts of the addition, the submission should contain proposed rule under Executive Order all data and information on: (1) Risks appropriate FDA advisory committee and by an order published in the 12866 and the Regulatory Flexibility Act known to the applicant that have not (Pub. L. 96–354). Executive Order 12866 been identified in this proposed rule; (2) Federal Register, either deny the request or give notice of its intent to directs agencies to assess all costs and summaries of all existing simulated- and benefits of available regulatory in-use data from investigations on the initiate a change in the classification of the device in accordance with section alternatives and, when regulation is safety and effectiveness of the device for necessary, to select regulatory which premarket approval is sought; 513(e) of the act and 21 CFR 860.130 of the regulations. approaches that maximize net benefits and (3) the results of simulated- and in- (including potential economic, use studies conducted by or for the V. References environmental, public health and safety, applicant. Applicants should submit and other advantages; distributive any PMA in accordance with the FDA’s The following references have been placed on display in the Dockets impacts; and equity). The agency ‘‘Guideline for the Arrangement and believes that this proposed rule is Content of a PMA Application.’’ The Management Branch (address above) and may be seen by interested persons consistent with the regulatory guideline is available from the Center philosophy and principles identified in for Devices and Radiological Health, between 9 a.m. and 4 p.m., Monday through Friday. the Executive Order. In addition, the Division of Small Manufacturers proposed rule is not a significant Assistance (address above). 1. American Dental Association, ‘‘Accepted regulatory action as defined by the Dental Therapeutics,’’ 40th ed., pp. 138– III. Comments Executive Order and so is not subject to 139, Chicago, IL, 1984. review under the Executive Order. 2. Corner, G. A., ‘‘An Assessment of the Interested persons may, on or before Performance of a Glass Bead Sterilizer,’’ The Regulatory Flexibility Act September 5, 1995, submit to the Journal of Hospital Infection, 10:308– requires agencies to analyze regulatory Dockets Management Branch (address 311, 1987. options that would minimize any above) written comments regarding this 3. Dayoub, M. B., and M. J. Devine, significant impact of a rule on small proposal. Two copies of any comments ‘‘Endodontic Dry-Heat Sterilizer entities. Because PMA’s for this device are to be submitted, except that Effectiveness,’’ Journal of Endodontics, could have been required by FDA as individuals may submit one copy. 2:343–344, 1976. early as February 12, 1990, and because Comments or requests are to be 4. Engelhardt, M. P., L. Grun, and H. Dahl, firms that distributed this device prior identified with the docket number ‘‘Factors Affecting Sterilization in Glass to May 28, 1976, or whose device has Bead Sterilizers,’’ Journal of found in brackets in the heading of this Endodontics, 10:454–470, 1984. been found by FDA to be substantially document. Received comments and 5. Fahid, A., and J. F. Tainter, ‘‘The Influence equivalent will be permitted to continue requests may be seen in the office above of File Size, Cleaning, and Time on the marketing the endodontic dry heat between 9 a.m. and 4 p.m., Monday Effectiveness of Bead Sterilizers,’’ Oral sterilizer during FDA’s review of the through Friday. Surgery, 58:443–445, 1984. PMA or notice of completion of the Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30037 PDP, the agency certifies that the ENVIRONMENTAL PROTECTION State operating permits program and the proposed rule will not have a significant AGENCY corresponding standards and economic impact on a substantial procedures by which the EPA will number of small entities. 40 CFR Part 70 approve, oversee, and withdraw approval of a State operating permits Therefore, under the Regulatory [TX±001; FRL±5217±7] program (see 57 Federal Register 32250, Flexibility Act, no further analysis is July 21, 1992). These rules are codified required. Clean Air Act Proposed Interim Approval Operating Permits Program at 40 Code of Federal Regulations (CFR) for the State of Texas part 70 (‘‘the part 70 regulation’’). Title List of Subjects in 21 CFR Part 872 V requires States to develop, and submit AGENCY: Environmental Protection to the EPA, programs for issuing these Medical devices. Agency (EPA). operating permits to all major stationary ACTION: sources and to certain other sources. Therefore, under the Federal Food, Proposed interim approval. The Act requires that States develop Drug, and Cosmetic Act and under the SUMMARY: The EPA proposes source and submit these programs to the EPA authority delegated to the Commissioner category-limited interim approval of the by November 15, 1993, and that the EPA of Food and Drugs, it is proposed that operating permits program submitted by act to approve or disapprove each 21 CFR part 872 be amended as follows: the Governor of Texas for the State of program within one year after receiving Texas for the purpose of complying with the submittal. The EPA’s program PART 872ÐDENTAL DEVICES Federal requirements which mandate review occurs pursuant to section 502 of that States develop and submit to EPA the Act and the part 70 regulation which programs for issuing operating permits 1. The authority citation for 21 CFR together outline criteria for approval or to all major stationary sources, with the part 872 is revised to read as follows: disapproval. Where a program exception of sources on Indian Lands. substantially, but not fully, meets the Authority: Secs. 501, 510, 513, 515, 520, Source category-limited interim requirements of part 70, the EPA may 522, 701 of the Federal Food, Drug, and approval was specifically requested by grant the program interim approval for Cosmetic Act (21 U.S.C. 351, 360, 360c, 360e, the Governor for this submission. a period of up to two years. Where a 360j, 360l, 371). DATES: Comments on this proposed State requests source category-limited interim approval and demonstrates 2. Section 872.6730 is amended by action must be received in writing by compelling reasons in support thereof, revising paragraph (c) to read as follows: July 7, 1995. ADDRESSES: Written comments on this the EPA may also grant such an interim approval. If the EPA has not fully § 872.6730 Endodontic dry heat sterilizer. action should be addressed to Ms. Jole C. Luehrs, Chief, New Source Review approved a program by two years after the date of November 15, 1993 or by the * * * * * (NSR) Section, at the EPA Region 6 Office listed below. Copies of the State’s end of an interim program, it must establish and implement a Federal (c) Date premarket approval submittal and other supporting program. application (PMA) or notice of information used in developing the completion of product development proposed interim approval are available B. Federal Oversight and Sanctions protocol (PDP) is required. A PMA or a for inspection during normal business If the EPA were to finalize this notice of completion of a PDP is hours at the following locations. proposed source category-limited required to be filed with the Food and Interested persons wanting to examine interim approval, it would grant that Drug Administration on or before (90 these documents should make an approval for a period of two years days after the effective date of a final appointment with the appropriate office following the effective date of final rule based on this proposed rule), for at least 24 hours before visiting day. interim approval, and the interim any endodontic dry heat sterilizer that Environmental Protection Agency, approval could not be renewed. During was in commercial distribution before Region 6, Air Programs Branch (6T– the interim approval period, the State of May 28, 1976, or that has on or before AN), 1445 Ross Avenue, Suite 700, Texas would be protected from (90 days after the effective date of a final Dallas, Texas 75202–2733. sanctions, and the EPA would not be rule based on this proposed rule), been Texas Natural Resource Conservation obligated to promulgate, administer, and Commission, Office of Air Quality, found to be substantially equivalent to enforce a Federal permits program for 12124 Park 35 Circle, Austin, Texas the endodontic dry heat sterilizer that the State of Texas. Permits issued under 78753. a program with interim approval have was in commercial distribution before full standing with respect to part 70, May 28, 1976. Any other endodontic dry FOR FURTHER INFORMATION CONTACT: and the State will permit sources based heat sterilizer shall have an approved David F. Garcia, New Source Review Section, Environmental Protection on the transition schedule provided in PMA or declared completed PDP in Agency, Region 6, 1445 Ross Avenue, Regulation XII, Title 31 of the Texas effect before being placed in commercial Suite 700, Dallas, Texas 75202–2733, Administrative Code (TAC). distribution. telephone 214–665–7217. Following final interim approval, if Dated: May 24, 1995. Texas has failed to submit a complete SUPPLEMENTARY INFORMATION: corrective program for full approval by D. B. Burlington, I. Background and Purpose the date six months before expiration of the interim approval, the EPA would Director, Center for Devices and Radiological A. Introduction Health. start an 18-month clock for mandatory As required under title V of the Clean sanctions. If Texas then failed to submit [FR Doc. 95–13831 Filed 6–6–95; 8:45 am] Air Act, as amended on November 15, a corrective program that the EPA found BILLING CODE 4160±01±P 1990 (‘‘the Act’’), the EPA has complete before the expiration of that promulgated rules which define the 18-month period, the EPA would be minimum elements of an approvable required to apply one of the sanctions 30038 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules in section 179(b) of the Act, which Lands. The State of Texas requested that Pursuant to 40 CFR 70.4(b)(3), the would remain in effect until the EPA the EPA approve its operating permit Governor is required to submit a legal determined that Texas had corrected the program as a source category-limited opinion from the Attorney General (or deficiency by submitting a complete interim program for a period of two the attorney for a State air pollution corrective program. Moreover, if the years. control agency that has independent Administrator found a lack of good faith In the State’s operating permits legal counsel), demonstrating adequate on the part of Texas, both sanctions program submittal, Texas does not authority to carry out all aspects of a under section 179(b) would apply after assert jurisdiction over Indian lands or title V operating permits program. The the expiration of the 18-month period reservations. To date, no tribal Texas Attorney General submitted such until the Administrator determined that government in Texas has authority to an opinion in Volume 5 (the submittal Texas had come into compliance. In any administer an independent air program supplement), demonstrating adequate case, if six months after application of in the State. Upon promulgation of legal authority as required by Federal the first sanction, Texas still had not regulations under section 301(d) of the law and regulation for interim approval. submitted a corrective program that the Act, Indian tribes will be able to apply 40 CFR 70.4(b)(4) requires the EPA found complete, a second sanction for treatment as States under the Act, submission of relevant permitting would be required. and receive the authority from the EPA program documentation not contained If following final interim approval, to implement an operating permits in the regulations, such as permit forms the EPA were to disapprove Texas’ program under title V of the Act. The and relevant guidance to assist in the complete corrective program, the EPA EPA will, where appropriate, conduct a State’s implementation of its permits would be required to apply one of the Federal title V operating permits program. The State addresses this section 179(b) sanctions on the date 18 program in accordance with requirement in the Texas Federal months after the effective date of the forthcoming EPA regulations, for those Operating Permits Program Submittal disapproval, unless prior to that date Indian tribes which do not apply for Supplement in Volume 5 (the submittal Texas had submitted a revised program treatment as States under the Act. supplement). The supplemental volume and the EPA had determined that it The Texas Air Control Board (TACB) contains a model permit, application corrected the deficiencies that prompted was the traditional implementing forms (including the standard phase II the disapproval. Moreover, if the authority for the Act and all of its acid rain forms), monitoring, Administrator found a lack of good faith amendments. The submittal, including recordkeeping and reporting forms, public notice examples and guidance to on the part of Texas, both sanctions the rules, were adopted by the TACB. under section 179(b) would apply after implement the operating permits The TACB’s operations and legal the expiration of the 18-month period program. The detailed guidance responsibilities were consolidated with until the Administrator determined that addresses many part 70 requirements operations of other Texas environmental Texas had come into compliance. In any including documentation on permit agencies. Therefore, effective September case, if six months after application of applicability, permit application 1, 1993, the Texas Air Control Board the first sanction, Texas still had not procedures, permit issuance, permit became part of a new State of Texas submitted a corrective program that the revisions and reopenings, permit environmental agency, the Texas EPA found complete, a second sanction renewals, compliance plan and Natural Resource Conservation would be required. certifications, and monitoring, reporting In addition, discretionary sanctions Commission (TNRCC). All rules, and recordkeeping. may be applied where warranted any permits, orders, and any other final time after the end of an interim approval actions of the TACB remain in full legal 2. Regulations and Program period if Texas has not timely submitted effect unless and until revised by the Implementation a complete corrective program or the TNRCC. The State of Texas has submitted EPA has disapproved a submitted 40 CFR 70.4(b)(1) requires that the TACB Regulation XII, Title 31 of TAC, corrective program. Moreover, if the submittal contain a program description Chapter 122—‘‘Federal Operating EPA has not granted full approval to of the State’s operating permits program Permits’’ (‘‘the Texas permit Texas’ program by the expiration of an describing how it intends to carry out its regulation’’) and TACB General Rules, interim approval, and that expiration responsibilities under the part 70 Title 31 of TAC, section 101.27 (‘‘the occurs after November 15, 1995, the regulations. The Texas Federal Texas fee regulation’’), for implementing EPA must promulgate, administer, and Operating Permits program description, the State’s operating permits program as enforce a Federal permits program for volume 1 of the submittal, explains that required by 40 CFR 70.4(b)(2). Sufficient Texas upon interim approval expiration. the Texas operating permits program evidence of their procedurally correct was developed to satisfy all of the adoption was submitted in the Texas II. Proposed Action and Implications requirements of the part 70 regulation. Federal Operating Permits Program A. Analysis of State Submission The operating permit in Texas will be Volumes 1 and 2 of the submittal. used to consolidate relevant applicable Copies of all applicable State and local 1. Support Materials requirements into one permit document. statutes and regulations which authorize Pursuant to section 502(d) of the Act, The program description provides a the part 70 program, including those the Governor of each State is required to broad overview of the State’s program, governing State administrative develop and submit to the a broad description of how the Federal procedures, were submitted with the Administrator an operating permits operating permits program in Texas will State’s program in Volumes 3 and 4. program under State or local law or be implemented in accordance with part The following discusses how the under an interstate compact meeting the 70, and a description of how the Texas permit regulation meets or does requirements of title V of the Act. Texas program will implement the applicable not meet the existing part 70 regulation. submitted, under the signature of former requirements set forth in other titles of However, due to pending litigation Governor Ann W. Richards, the the Act, specifically title I, title III, title involving sections of the part 70 operating permits program submittal to IV, and title VII. The State projects over regulation, revisions have been be implemented in all areas of the State 3,000 sites will be subject to the proposed, and more proposed revisions of Texas with the exception of Indian operating permits program. may be forthcoming. Any revisions to Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30039 the part 70 regulation may alter or requirements of the Act; any term or of any new facility or the modification obviate the need for the State to make condition of any preconstruction permit of an existing facility. The term the regulatory changes identified in this issued pursuant to regulation approved ‘‘facility’’ is broadly defined to include notice. During the State’s rulemaking or promulgated through rulemaking any ‘‘point of origin’’ of air process proposing to make changes under title I including Part C or D, of the contaminants, so there is no opportunity necessary for full title V approval, the Act; and additional requirements listed for a source to ‘‘net out’’ of minor NSR. EPA will comment on the State’s in 40 CFR 70.2. 40 CFR part 70 requires Moreover, Texas mandates best proposal using the criteria in whatever all applicable requirements to be available control technology (BACT) as regulation is in place at that time. In the adequately addressed in the permit the emission control technology which Federal Register notice proposing application and the operating permit. applies to all minor NSR changes. Texas action on the State’s submittal for full Section 122.010 of the Texas permit further subjects each minor NSR permit approval, the EPA will use the criteria regulation defines the term ‘‘applicable and permit amendment to a health in whatever is the final part 70 requirement.’’ Paragraph A of the effects evaluation which considers the regulation, whether it be the existing definition makes specific reference to cumulative effect of the proposed July 21, 1992, regulation or a later the Texas State Implementation Plan action, together with other air version (‘‘part 70’’). (SIP) approved chapters which the State contaminant sources, on ambient air The following requirements, set out in considers relevant requirements of title quality. Finally, where the Texas minor the part 70 regulation, are addressed in I of the Act. Paragraph B uses the NSR program provides for public notice the State’s submittal: (1) Provisions to qualifier ‘‘Part C (Prevention of of a permit action, the program provides determine applicability (40 CFR Significant Deterioration) or Part D citizens the right to request a full 70.3(a)): 31 TAC section 122.120; (2) (Nonattainment Review)’’ to further evidentiary hearing on the action. Texas Provisions to determine complete specify what constitute applicable has also pointed to the exceptionally applications (40 CFR 70.5(a)(2)): 31 TAC requirements. This definition excludes large number of part 70 sources which section 122.134 and the forms (40 CFR certain minor NSR permitting activities are located in the State and which are 70.4(b)(4)): Supplemental Volume, as applicable requirements. Under the candidates for minor NSR. On the basis Operating Permits Guidance; (3) Public Texas permitting structure, any of the showing of compelling reasons Participation (40 CFR 70.7(h)): 31 TAC reasonably available control technology described above, the EPA believes that sections 122.150–122.155; (4) Provisions (RACT), maximum achievable control a State or local permitting authority for minor permit modifications (40 CFR technology (MACT), section 112, or with minor NSR/part 70 integration 70.7(e)(2)): 31 TAC sections 122.215– section 111 requirements applicable to difficulties such as Texas would warrant 122.217; (5) Provisions for permit minor units at major sources (whether interim approval. content (40 CFR 70.6(a)): 31 TAC reflected in a minor source permit or The following sections of the permit sections 122.141–122.145; (6) Provisions not) will be included as part of major regulation are directly related and are for operational flexibility (40 CFR source’s original title V permit. Any considered part of the minor NSR/part 70.4(b)(12)): 31 TAC section 122.221; (7) non-RACT, non-111, and non-112 minor 70 integration issue: permit application Provisions to determine insignificant NSR permitting requirement will not be (sections 122.130–122.139), permit activities (40 CFR 70.5(c)): 31 TAC included in the major source’s title V revisions (sections 122.210–122.221), section 122.010 (definition of applicable permit. For this reason, the proposed and permit content (section 122.141– requirement) and sections 122.215– definition is inconsistent with the 122.145). For full approval, these 122.217; (8) Enforcement provisions (40 definition contained in the part 70 sections must be revised to be consistent CFR 70.4(b)(5) and 70.4(b)(4)(ii)): regulation. The EPA interprets the with part 70. Supplemental Volume ‘‘State of Texas Federal definition of ‘‘applicable The August 29, 1994, proposal for Office of the Attorney General’’ and requirement’’ to include terms and Operating Permits Program Interim Volume 3, ‘‘Texas Health and Safety conditions of ‘‘any preconstruction Approval Criteria requires that, in such Code’’, section 382.082(b). permits issued pursuant to regulations interim approval situations, a State: (1) The following requirements of 40 CFR approved or promulgated through Include a statement in permits that part 70 are addressed in the Texas rulemaking under title I’’, including all certain minor NSR requirements are not permit regulation: minor new source review permits. included in permits issued during the (a) Applicability criteria, including However, on August 29, 1994, (see 59 interim period; (2) include a cross- any criteria used to determine FR 44574, Operating Permits Program reference in each operating permit to the insignificant activities or emissions Interim Approval Criteria), the EPA minor NSR permit for that source; and levels (40 CFR 70.4(b)(2)). These proposed revisions to 40 CFR part 70 to (3) require reopening of permits for provisions require all sources subject to allow interim approval for States such incorporation of minor NSR permit the operating permits regulations to as Texas whose programs do not conditions upon completion of the have a permit to operate that assures provide for incorporating into permits interim approval period. If the August compliance by the source with all all requirements established through proposal is finalized, it is the EPA’s applicable requirements. The State is to EPA-approved minor NSR programs, position that the Texas program can be submit a program that, at a minimum, and that can show compelling reasons granted interim authorization as long as assures adequate authority to issue for receiving interim approval. The State the State complies with the three permits in compliance with all the of Texas has argued that the State’s conditions discussed above. applicable requirements of title V of the existing minor NSR program is so Section 122.120 of the Texas permit Act and the part 70 regulation. 40 CFR stringent as to make the integration of a regulation addresses 40 CFR 70.3(a), 70.2 defines the term ‘‘applicable minor NSR permit into part 70 permits regarding applicability of part 70. requirement’’ to include: any standard infeasible, and from the standpoint of Section 122.120 requires the owner or or other requirement provided for in the environmental protection, unnecessary. operator of a site to submit an applicable implementation plan The EPA acknowledges that Texas’ application for a Federal operating approved or promulgated by the EPA minor NSR program is a very stringent permit if the site contains one or more through rulemaking under title I of the one. The Texas program requires of the following: (1) Any major source Act that implements the relevant authorization prior to the construction as defined in section 122.010 (relating to 30040 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules general definitions); (2) any affected separately from the manufacturing requirements in the permit application. source as defined in section 122.012 facilities with which they are co- The potential applicable requirement (relating to acid rain definitions); (3) any located. The EPA intended for this language as a practical manner will solid waste incineration unit required to language to clarify the flexibility in part require the source to characterize obtain a Federal operating permit 70 for allowing R & D facilities to be operations and emissions in a manner pursuant to section 129(e) of title I of treated separately in cases where the R that is comprehensive enough to allow the Act; and (4) any non-major source & D facility has a different two-digit the State to independently verify which which the EPA, through further Standard Industrial Classification requirements are applicable. This rulemaking, has designated as no longer (‘‘SIC’’) code and is not a support process is subject to audits by State field exempt from the obligation to obtain a facility. This approach is consistent inspectors, and action could be taken if Federal operating permit. The State with the treatment of R & D facilities in violations of the Texas Permit further identifies in sections 122.120(4) the New Source Review program. Regulation exist. (A)–(C) any non-major source subject to The Texas permit regulation could Pursuant to section 122.120(1) of the section 111, any non-major source cause certain part 70 major sources, as Texas permit regulation, the owner or subject to section 112 or ‘‘any source in defined in 40 CFR 70.2, or portions of operator of a site shall submit an a source category designated by the such sources with the same SIC code, to application to the TNRCC if the source Administrator pursuant to title III of the be treated as separate sources. This is a major source. Major source Act’’. The State’s provision regarding could cause some part 70 sources to be applicability is calculated on a site’s applicability is inconsistent with the exempted from coverage by part 70 potential to emit air pollutants. When Federal definition. Sections (4) (A) and permits which must ensure all part 70 the applicant is calculating major source (B) each appear to define non-major requirements for these sources are met. applicability, all emissions at each unit source as ‘‘any source, including an area For full part 70 approval, the Texas will be accounted for at the site, source,’’ subject to standards under permit regulations must treat research regardless if a unit is potentially subject section 111 or 112 of the Act. Section and development activities consistent to an applicable requirement. The 122.120(4) could potentially be with part 70. operating permit application requires interpreted as exempting any source, Pursuant to 40 CFR 70.5(c), a permit the applicant to indicate all air even a major source, from the application must describe all emissions pollutants that are major at the site. The requirement to obtain a part 70 permit. of regulated air pollutants emitted from operating permit will reference pre- For full approval, the State must revise any emission unit. However, the construction permits in which specific sections 122.120(4) (A) and (B) to clarify Administrator may approve, as part of a emission data for each emission unit source applicability. Additionally, State program, a list of insignificant will reside. Additionally, more detail of section 122.120(4)(C) of the permit activities and emission levels which specific emission data is contained in an regulation defines non-major source as need not be included in the permit emission inventory database. ‘‘any source in a source category application. The Texas operating permit The design and approach the State designated by the Administrator program is designed to require the uses to keep activities out of the pursuant to Title III of the Act.’’ 40 CFR applicant to certify all emission units operating permit application is 70.3(a) includes a number of different subject to an applicable or potential considered practical and equivalent to types of sources other than section 112 applicable requirement be described in part 70. This design attains the same sources. For full approval, section the permit application. results as a list of insignificant activities 122.120(4)(C) of the permit regulation Section 122.132 of the Texas permit or emissions thresholds for units. The must be modified to be consistent with regulation discusses the required EPA believes the procedure set forth in 40 CFR 70.3(a). information the permittee is to include the Texas permit regulation to identify Section 122.010 of the Texas permit in the operating permit application. The insignificant activities achieves the goal regulation defines major source as ‘‘any permit application shall include for and intent of the part 70 regulation and site which emits or has the potential to each emission unit, or group of similar therefore is consistent and acceptable. emit air pollutants as described in emission units: (1) Information The part 70 regulation requires the subparagraphs (A), (B), and (C) of this identifying each applicable requirement, permit application to describe all definition.’’ The permit regulation any corresponding emission limitation emissions of regulated air pollutants defines ‘‘site’’ to allow research and and any corresponding monitoring, emitted from any emissions unit. A development (R & D) operations to be reporting, and recordkeeping regulated air pollutant includes any treated as a separate site from any requirements; and (2) information pollutant subject to a standard manufacturing facility with which they identifying potentially applicable promulgated under section 112 or other are co-located. The State’s permit requirements for that particular type of requirement established under section regulation is inconsistent with 40 CFR emission unit and the basis for the 112 of the Act, including sections 70.3 which requires that a State’s determination that those applicable 112(g), (j), and (r). The Texas permit operating permits program provide for requirements do not apply. regulation defines the term ‘‘air the permitting of all major sources, and Therefore, it is necessary for the pollutant’’ and does not define 40 CFR 70.4(b)(3)(i) which requires that applicant to identify all potential ‘‘regulated air pollutant.’’ It defines air the State demonstrate adequate legal applicable requirements for each unit pollutant to include ‘‘any pollutant authority to issue permits and assure and give a basis for all negative listed in section 112(b) or section 112(r) compliance with each applicable applicable determinations. In other of the Act and subject to a standard requirement by all part 70 sources. words, where a unit has a limitation or promulgated under section 112 of the Confusion over this issue has a specific characteristic of an emission Act.’’ The term ‘‘air pollutant’’ is also occurred as a result of language in the unit that is limited by a regulation, but used in the Texas definitions for preamble to the final July 21, 1992, 40 the applicant claims the unit is not ‘‘potential to emit’’ and ‘‘major source.’’ CFR part 70 rulemaking (57 FR 32264). subject to that regulation, the applicant This creates an inconsistency with the The preamble language indicates that is required to justify why. The applicant part 70 regulation, in which States would have the flexibility in is responsible and is liable for including applicability is based on a source’s many cases to treat R & D facilities all applicable and potentially applicable potential to emit any air pollutant, Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30041 including those listed pursuant to proposes to allow State programs with (referring to options for approval/ section 112, rather than on pollutants a narrower definition of ‘‘title I disapproval and implications) further which are subject to a promulgated modification’’ to receive interim discusses the sites subject to the interim standard. For full approval, the approval (59 FR 44572). The EPA in that approval program and the Texas definition of ‘‘air pollutant’’ must be notice states its belief that the better rationale for requesting interim modified to be consistent with the part reading of ‘‘title I modification’’ would approval. 70 regulation. include minor NSR and pre-1990 Section 122.241 of the Texas permit Section 122.010 of the Texas permit NESHAP requirements, but solicited regulation requires permit applications regulation defines ‘‘major source’’ and public comment on the appropriate for renewal at least six months prior to further identifies the twenty-seven interpretation of the term (59 FR 44573). the date of permit expiration, but not stationary source categories required to If the definition of ‘‘title I modification’’ more than eighteen months prior to the include a source’s fugitive emissions in is finalized to include minor NSR date of permit expiration. The permit determining when a source is major. changes, States such as Texas which regulation contains criteria for Category xxvii states that, for ‘‘any other have a narrower definition are eligible determining completeness of stationary source category which, as of for interim but not final approval. If the applications consistent with 40 CFR August 7, 1980, is being regulated under final definition excludes changes 70.5(a)(2). sections 111 or 112 of the Act,’’ fugitives reviewed under minor NSR and changes Pursuant to 40 CFR 70.7, the State’s must be counted in determining if the that trigger a pre-1990 NESHAP program must prohibit a source from source is major. This is inconsistent requirement, the State’s definition of operating after the time that the source with the current 40 CFR 70.2 which ‘‘title I modification’’ would be is required to submit a timely and requires fugitive emissions to be consistent with part 70. complete application, except in counted for all section 111 and 112 For similar reasons, the EPA will not compliance with a permit issued under standards, and which does not limit the construe 40 CFR section a part 70 program. Section 122.138 of stationary source categories to those 70.7(e)(2)(i)(A)(3) to prohibit the State the Texas permit regulation allows an which existed as of August 7, 1980. For from receiving interim approval because application shield if there is a timely full approval, the State must be it allows minor NSR case-by-case and complete application for permit consistent with part 70. determination changes to be processed issuance, significant permit Section 122.010 of the Texas permit as minor permit modifications. Again, modification to a permit, or renewal. regulation defines ‘‘title I modification’’ although the EPA has reasons for The site’s failure to have a Federal as a change at a site that qualifies as a believing that the better interpretation of operating permit is not a violation until modification under section 111 of title ‘‘title I modification’’ is the broader one, the State takes final action on the I of the Act or section 112(g) of title I the EPA does not believe that it is permit. The application shield provided of the Act, or as a major modification appropriate to deny interim approval to for in 40 CFR 70.7(b) does not apply to under part C or part D of title I of the a State such as Texas on such grounds. Act. The State’s definition of ‘‘title I (b) Permit application requirements significant modifications, but only modification’’ does not include changes (40 CFR 70.5(c)). These requirements are applies to a ‘‘complete application for reviewed under a minor source addressed in sections 122.130–122.139 permit issuance (including for preconstruction review program of the Texas permit regulation. A renewal)’’. For this reason, section (‘‘minor NSR changes’’), nor does it transition plan is included in the permit 122.138 of the Texas permit regulation include changes that trigger the regulation which accounts for six SIC is inconsistent with 40 CFR 70.7. For application of National Emission codes subject to the Texas interim full approval, the Texas permit Standards for Hazardous Air Pollutants approval program. The Texas permit regulation must be made consistent with (NESHAP) established pursuant to regulation requires the owner or the part 70 regulation by deleting the section 112 of the Act prior to the 1990 operator to submit a timely and reference in section 122.138 to Amendments. The EPA is currently in complete application for each site ‘‘significant permit modification to a the process of determining the subject to the requirements of the permit permit.’’ appropriate interpretation of ‘‘title I regulations. Sections 122.211–122.213 of the modification’’. As further explained Pursuant to 40 CFR 70.5(c)(8)(iii)(C), a Texas permit regulation contain the below, the EPA has solicited public compliance schedule is required for requirements of 40 CFR 70.7(d) for comment on whether the phrase sources out of compliance at the time of administrative amendments, but do not ‘‘modification under any provision of permit issuance. Section require the Administrator’s approval for title I of the Act’’ in 40 CFR 122.132(b)(3)(B) of the Texas permit similar changes allowed by section 70.7(e)(2)(i)(A)(5) should be interpreted regulation addresses compliance 122.211. This is inconsistent with 40 to mean literally any change at a source schedules but appears to not require CFR 70.7(d)(1)(vi) which requires that, that would trigger permitting authority that schedules be at least as stringent as in order for changes other than those review under regulations approved or any consent decree or administrative specified in 40 CFR 70.7(d) (i) through promulgated under title I of the Act. order to which the source is subject. For (v) to be made as administrative This would include minor State full part 70 approval, the State must amendments, they must first be preconstruction review programs revise the permit regulation to be determined by the Administrator, as approved by the EPA as part of the State consistent with the part 70 regulation. part of the approved part 70 program, to Implementation Plan under section (c) Permit issuance and revision be similar to those specified in 110(a)(2)(C) of the Clean Air Act and procedures (40 CFR 70.7). These 70.7(d)(1) (i) through (iv). For full regulations addressing source changes requirements are provided for in approval, section 122.211 must be that trigger the application of NESHAP subchapter C of the permit regulation. revised to specifically list the types of established pursuant to section 112 of The State has requested that the EPA changes that the State proposes to be the Act prior to the 1990 Amendments. approve the proposed operating permits eligible for processing as administrative In the August 29, 1994, proposed program as a source category-limited amendments, for the Administrator’s revisions to the interim approval criteria interim program for a period of two approval as part of the State’s part 70 at 40 CFR section 70.4(d) the EPA years. Section (II)(B) of this notice program. 30042 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules Sections 122.215–122.217 of the or reporting terms and conditions, or a day review period, whichever is later. Texas permit regulation requires certain substitution in those terms and For full approval, the Texas permit permit revisions to be processed as conditions promulgated pursuant to regulation must be consistent with part ‘‘permit additions’’. The criteria for Federal New Source Performance 70. ‘‘permit additions’’ appear to be the Standards or National Emission Subchapter E of the Texas permit same as the Federal criteria for some Standards for Hazardous Air regulation contains the acid rain types of changes noted under minor Pollutants.’’ This definition of provisions, as well as the deadlines for permit modification provisions (40 CFR significant changes to monitoring, submitting acid rain permit 70.7) and for some changes allowed as reporting or recordkeeping requirements applications. The provisions and ‘‘off permit’’ changes under 40 CFR is acceptable under the current part 70 timelines are consistent with those 70.4(b)(14). The State proposes to rule. If any additional rulemaking is required by title IV of the Act. Section implement the ‘‘permit addition’’ promulgated by the EPA on this subject, 122.139 of the Texas permit regulation criteria in the interest of providing the State must change its definition regarding action on permit applications adequate, streamlined, and reasonable consistent with the new rulemaking. and section 122.136 regarding procedures for processing permit Section 122.216 of the Texas permit additional information are consistent revisions. However, the EPA does not regulation allows applications for with 40 CFR 70.4(b)(6) and 70.7(a)(4). consider the streamlined procedures set permit additions to be submitted to the Pursuant to the part 70 regulation, a out in sections 122.215–122.217 of the State no later than 90 days after the permit must be reopened and revised for Texas permit regulation to be equivalent owner or operator has obtained or cause when an additional applicable to the minor permit modification qualified for a preconstruction requirement becomes applicable to a procedures found in the part 70 authorization. However, under this rule permitted site with a remaining permit regulation. For full approval, the permit after the source receives its term of three or more years. Sections additions rule and all other Texas preconstruction permit, it may make the 122.231 and 122.233 of the Texas permit permit revisions rules must be modified requested operating change before regulation discuss the criteria and to be consistent with part 70. submitting the operating permit procedures for permit reopenings and The criteria to qualify for permit application within the 90-day meet the requirements of 40 CFR 70.7(f). additions in section 122.215 include the timeframe. 40 CFR 70.7(e)(2)(v) requires Provisions for public notice have been following: A change at a site may that no operating change be made if a contained in section 122.153 of the qualify as a permit addition if the source is changing a term in its original Texas permit regulation and in section change is not addressed or prohibited by part 70 permit until the source has 122.202(a)(3) for general permits. Those the Federal operating permit, does not submitted the operating permit revision sections provide for procedures for violate any existing term or condition of application. For full approval, the Texas public notice and an opportunity for the Federal operating permit, does not permit regulation must be revised to be public comment for all permit issuance violate any applicable requirement, and consistent with part 70. proceedings, including initial permit is not a title I modification. Section 122.217 addresses the issuance, significant modifications, Section 122.215(c) also allows a procedures used to process permit renewals, and initial general permits. 40 change at a site to be processed as a additions and states ‘‘the permit CFR 70.7(h) requires the public notice to permit addition if the change ‘‘does not addition shall not become final until include the emissions change involved require or change a determination of an after the EPA’s 45-day review period at in any permit modification. For full emission limitation under section 112(g) renewal.’’ For the EPA to consider approval, the State must revise its or section 112(j) of title I of the Act permit additions equivalent to the permit regulation to be consistent with ** *’’. The Federal part 70 regulation procedures in 40 CFR 70.7(e)(2), the part 70. contains a similar provision at 40 CFR EPA must have the opportunity to Provisions for the EPA and affected 70.7(e)(2)(i)(A)(3) with respect to minor review and object to the issuance in State review to be accomplished in an permit modification procedures, but the writing within 45 days of receipt of the expeditious manner as required by 40 Federal provision is written in general proposed permit. For full approval, the CFR 70.8 have been provided for in terms to prohibit modifications that Texas permit regulation must be sections 122.310 and 122.311 of the change a ‘‘case-by-case’’ determination consistent with part 70 and allow for Texas permit regulation. Section of an emission limitation or standard. timely EPA review. 122.132 of the Texas permit regulation Section 122.215(c) of the Texas permit The Texas permit addition procedures requires the applicant, rather than the regulation does not require case-by-case addressed in section 122.217 provide permitting authority, to submit the reasonably available control technology that, within 90 days after receipt of a permit application directly to the (RACT) changes to be processed as complete application, the agency is to Administrator. This is acceptable and significant permit modifications. The determine that the requested meets the requirements of 40 CFR 70.8. EPA interprets 40 CFR 70.7(e)(2)(i)(A)(3) modification does not meet the permit 40 CFR 70.8(a)(3) requires each State provisions prohibiting changes in ‘‘case- addition criteria and that it should permitting authority to keep records for by-case’’ determinations to apply to therefore be reviewed under the five years. The State did not address this RACT equivalency determinations. significant modification procedure, or requirement in the Texas permit Therefore, the EPA does not consider the agency is to revise the draft permit regulation. However, the TNRCC is the Texas provision to be equivalent to addition and transmit to the EPA the subject to, and must comply with, the the part 70 regulation. For full approval, new proposed permit addition. This State of Texas Records Retention the permit regulation must be modified section does not include a deadline for Schedule that is approved by the State consistent with part 70. the TNRCC to issue or deny a permit Auditor’s Office and the Texas State Section 122.215(c)(2) of the Texas addition modification. The minor Library and Archives Commission permit regulation defines ‘‘significant permit modification procedures (signed and dated April 7, 1993) changes to monitoring, reporting or contained in 40 CFR 70.7(e)(2) require a requiring permit files to be maintained recordkeeping requirements in the State to issue or deny the permit for three years after a file is closed. A permit.’’ The definition includes the modification within 90 days or 15 days closed file is one that is closed, ‘‘removal of monitoring, recordkeeping, after the end of the Administrator’s 45 terminated, expired, or settled. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30043 Therefore, records will be maintained enforceable restrictions on potential to Temporary sources, as allowed by 40 for the life of the permitted facility plus emit) as a SIP revision on September 17, CFR 70.6(e), are provided for in section an additional three years. This is 1993. Section 122.122 establishes a 122.204 of the Texas permit regulation. consistent with and meets the procedure for grandfathered sources, This section meets the requirements of requirements of 40 CFR 70.8(a)(3). (i.e. sources exempted from having a the part 70 regulation. (d) Permit Content (40 CFR 70.6(a)). State NSR permit because they were The concept of a permit shield is The permit content requirements are constructed or operated prior to 1971), discussed in 40 CFR 70.6(f) as a means contained in sections 122.141–122.145 to submit a certification to the State that by which States could allow an of the Texas permit regulation. 40 CFR establishes a limit on potential to emit enforcement shield as a permit 70.3(d) requires fugitive emissions from that is enforceable as a matter of State provision, provided certain criteria were a part 70 source to be included in the law. If section 122.122 is approved by met. The State determined that the operating permit in the same manner as the EPA into the SIP, these limits would permit shield was too broad in scope stack emissions. The definition of an be federally enforceable as well. The and too difficult to apply properly. ‘‘emission unit’’ in section 122.010 of EPA is taking no action on section Therefore, the State chose not to include the Texas permit regulation includes 122.122 in this notice. A separate action the permit shield as described in the fugitive emissions to be collectively will be taken on the State’s proposed part 70 regulation. Instead, the State considered as an emission unit. The SIP revision at a later date. adopted section 122.145(e) through operating permit will consolidate On January 25, 1995, the EPA’s Office which the State intends to provide for already existing federally enforceable of Air Quality Planning and Standards an enforcement shield in those requirements at relevant emission units. issued guidance which, among other situations where the interpretation of a This raises the minor NSR/part 70 things, announced the availability of a rule is required and may be subject to integration issue as discussed in section two-year transition period during which change. The EPA believes the intent of the II(A)(2)(a) above because of the manner a State could give sources additional rule is worthy, but is concerned about in which Texas has defined ‘‘applicable options for seeking federally enforceable its ambiguities. Therefore, the EPA requirement’’. Under 40 CFR 70.3, a limitations on potential to emit. These believes it can not go forward with a permit application must describe all options allow a source with a final action granting interim approval to emissions of regulated air pollutants practicably enforceable limit on the State of Texas unless the EPA emitted from any emission unit, potential to emit in a State enforceable receives a written commitment from the including fugitive emissions from permit and/or limitations established by emission units not subject to an board of the TNRCC or designee State rule (such as by certificates of applicable requirement. Because of the agreeing to process any actions taken registration issued pursuant to section issue discussed in section II(A)(2)(a) of pursuant to section 122.145(e) as 122.122), to certify to the EPA that it this notice regarding the State’s follows: (1) The interpretation made accepts the Federal enforceability of that definition of applicable requirement, the pursuant to section 122.145(e) shall be limit for the duration of the transition State’s operating permit program does limited to applicability issues only; (2) period. Certifications developed not ensure that this part 70 requirement the EPA shall have the opportunity to pursuant to section 122.122 will serve will be met. For full approval, Texas review and veto every section as the basis for exercise of this transition must revise the Texas permitting 122.145(e) action; and (3) the policy, provided Texas wishes to regulation to be consistent with part 70. interpretation will be based upon the The Texas permit regulation allows exercise this option, and an acceptable most current EPA guidance, and any for such changes as emission trading certification process is developed guidance developed by the TNRCC must and anticipated operating scenarios between Texas and the EPA addressing be in writing and preapproved by the provided the permittee meets the the source’s acceptance of Federal EPA. Additionally, for full part 70 requirements set forth in section enforceability. approval, the TNRCC must revise 122.221 (operational flexibility), that the 40 CFR 70.4 requires the State to issue section 122.145(e) of the Texas permit permittee comply with Regulation VI permits for a fixed term of five years in regulation to reflect the three previous (Control of Air Pollution by Permits for the case of permits for acid rain and all provisions. New Construction or Modification), and other permits for a period not to exceed Emergency provisions are provided provided the Texas SIP allows it. five years. 40 CFR 70.4(b)(3)(iv) for in 40 CFR 70.6(g). Section 122.143 Regulation VI does not allow for a provides that permits issued for solid of the Texas permit regulation facility to ‘‘trade emissions’’ without waste incineration units combusting references chapter 101 (General Rules), best available control technology and an municipal waste subject to provisions which contains notification impacts review, nor does Regulation VI under section 129(e) of the Act can have requirements for major upsets. Under allow a source to vary its operating a fixed permit term of twelve years. this chapter, the owner or operator of a scenario, unless expressly allowed Rather than making the distinction facility must notify the Executive under an existing preconstruction between five and twelve years, section Director of the TNRCC as soon as authorization. The Texas permit 382.0543(a) of the Texas Clean Air Act possible of any major upset condition regulation has adequately addressed provides that an operating permit is which causes or may cause an excessive emission trading and operating subject to renewal at least every five emission that contravenes the intent of scenarios. years. This approach for solid waste the statute or the regulations. In the 40 CFR 70.6(b) requires all terms and incineration units combusting event that the information required in conditions of a permit, including any municipal waste is acceptable and the notification is unknown at the time provisions designed to limit a source’s meets the requirements of the part 70 of the initial notification, then such potential to emit, to be enforceable by regulation. The Texas permit regulation information must be provided as soon as the EPA and citizens, unless such terms does not, however, limit the general possible, and submitted as a written and conditions are specifically permit term to a maximum of five years. report no later than two weeks from the designated as not federally enforceable. For full approval, the State of Texas onset of the upset condition. This The State submitted section 122.122 must revise the general permit term to allowance for time of agency (relating to establishment of federally be consistent with part 70. notification by the permittee is 30044 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules inconsistent with the part 70 regulation. CO emissions were excluded, radionuclide program to ensure that 40 CFR 70.6(g)(3) requires the permittee corresponds to an average of $30.77 per permits are issued in a timely manner. to submit notice of the emergency to the ton of regulated pollutants. This average Texas has demonstrated in its permitting authority within two rate is above the presumptive minimum operating permits program submittal working days. For full approval, the adjusted by the CPI. The emission fee adequate legal authority to implement Texas permitting rule must be rate for FY 1995 averages $26 per ton of and enforce all section 112 requirements consistent with the part 70 regulation. criteria pollutants including the through the title V permit. This legal The part 70 regulation requires an collection for CO emissions. The fee rate authority is contained in Texas enabling operating permits program to allow for will be reviewed in early calendar year legislation and in regulatory provisions operational flexibility. 40 CFR 1995 and every two years thereafter. The defining ‘‘applicable requirements’’ and 70.4(b)(12) allows for ‘‘section fee review will account for projected stating that the permit must incorporate 502(b)(10) changes without requiring a CPI adjustment, additional staffing all applicable requirements. The EPA permit revision, if the changes are not needs, and/or emission reductions that has determined that this legal authority modifications under any provision of may require increasing the fee rate. is sufficient to allow Texas to issue title I of the Act and the changes do not Pursuant to 40 CFR 70.4(b)(8), the permits that assure compliance with all exceed emissions allowable under the State must include in the fee section 112 requirements. permit.’’ ‘‘Section 502(b)(10) changes’’ demonstration an estimate of the permit The State of Texas will pursue are not defined or included in the Texas program costs for the first four years delegation of rules and programs, as permit regulation; therefore, it is not after approval and a plan detailing how appropriate, to implement and enforce clear what types of changes can be the State plans to cover these costs. The the existing and future requirements of processed through the State’s EPA has received the TNRCC FY 1994 sections 111, 112, and 129 of the Act, and all MACT standards promulgated in operational flexibility provision. Section and FY 1995 operating budget. Since the the future, in a manner consistent with 122.221 of the Texas permit regulation EPA has not received a complete four State law, to ensure all applicable could be interpreted to allow changes year projection, this will be required for requirements of part 70 are met. which violate what the EPA considers full approval. an applicable requirement. This is Section 112(g) of the Act requires that, inconsistent with the definition of 4. Provisions Implementing the after the effective date of a permits ‘‘Section 502(b)(10) changes’’ in the part Requirements of Other Titles of the Act program under title V, no person may construct, reconstruct, or modify any 70 regulation. Therefore, for full The State of Texas request for approval, the State must revise its major source of hazardous air pollutants approval of a part 70 program also permit regulation such that the unless the State determines that the serves as a request for approval of the definition of ‘‘Section 502(b)(10) MACT emission limitation under State’s rulemaking process as a changes’’ is consistent with part 70. section 112(g) will be met. The EPA has mechanism to gain delegation, when (e) Off-permit (40 CFR 70.4(b)(14) and announced its interpretation of the Act requested by the State for a particular 70.4(b)(15)). Section 122.215 of the in the Federal Register (see 60 FR 8333, standard, of unchanged section 112 Texas permit regulation defines off- February 14, 1995) (hereafter standards under the authority of section permit changes under part 70 as changes Interpretive Notice). The Interpretive 112(l). At this time, the State plans to which qualify as permit additions. Notice postpones the effective date of use the mechanisms of adoption-by- Because of the State’s narrow definition section 112(g) until after the EPA has reference and case-by-case adoption to of applicable requirement, some promulgated a final rule addressing that adopt unchanged Federal section 112 changes which would be allowed as provision. The rationale for the revised requirements into its regulations. The ‘‘off-permit’’ changes under the Texas interpretation was explained in detail in State of Texas may, at any time, exercise rule would not be considered ‘‘off- the Interpretive Notice. permit’’ under the Federal definition of its option to request, under section The Interpretive Notice explains that changes which can be made without a 112(l) of the Act, delegation of section the EPA is still considering whether the permit revision under 40 CFR 112 requirements in the form of State effective date of section 112(g) should 70.4(b)(14). Section (II)(A)(2)(a) of this regulations which the State be delayed beyond the date of notice identifies issues regarding the demonstrates are equivalent to the promulgation of the Federal rule to definition of applicable requirement corresponding section 112 provisions allow States time to adopt rules that must be addressed prior to full promulgated by the EPA. The State will implementing the Federal rule. If a approval. receive delegation of those remaining decision is made to allow such standards and programs through the 3. Permit Fee Demonstration additional delay in the implementation section 112(l) delegation process. of section 112(g), the EPA will In the fee regulation, the State The radionuclide NESHAP is a announce that decision in the final proposes to charge an emission fee for section 112 regulation and therefore also section 112(g) rulemaking. sources subject to title V in Fiscal Year an applicable requirement under the The State of Texas adopted, and 1994 (FY 1994) and FY 1995 equivalent State operating permits program for part incorporated by reference, the to at least the part 70 presumptive 70 sources. There is not yet a Federal provisions of 40 CFR part 72 in effect on minimum fee of $25 per ton of regulated definition of ‘‘major’’ for radionuclide the date of this action for purposes of air pollutants, adjusted per the sources. Therefore, until a major source implementing an acid rain program that consumer price index (CPI). The definition for radionuclides is meets the requirements of title IV of the emission fee rate for FY 1994 is set at promulgated, no source would be a Act. It is the EPA’s position that this $25 per ton of regulated pollutants major section 112 source solely due to State program meets the requirements of including carbon monoxide (CO). Texas its radionuclide emissions. However, a the Federal acid rain program. does not charge fees above the 4,000 ton radionuclide source may, in the interim, per year cap. The State will collect $40 be a major source under part 70 for 5. Enforcement Provisions million per year to support all another reason, thus requiring a part 70 40 CFR part 70 requires each applicable part 70 activities. The permit. The EPA will work with the operating permit program to provide generation of $40 million in revenue, if State in the development of its enforcement authority to address Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30045 violations of program requirements by which includes an agreement between following interim approval will allow permitted sources. The Texas the State and the EPA, entitled ‘‘Fiscal the State to hire additional engineers enforcement provisions are contained in Year 1993 Memorandum of and train experienced engineers to write the Texas Clean Air Act (TCAA) and are Understanding between the Texas Air quality permits that consolidate all discussed in the Attorney General’s Control Board and the U.S. applicable requirements into one Opinion. Pursuant to 40 CFR Environmental Protection Agency.’’ document. Furthermore, the additional time is necessary to develop a computer 70.11(a)(3)(ii), the permitting authority 6. Summary shall have the authority to recover information management system that penalties against any person who The State of Texas submitted to the will manage the permits, permit knowingly violates any applicable EPA its operating permits program, applications, and additional requirement, any permit condition, or requesting the EPA to grant interim documentation. This computer system any fee or filing requirement. These fees approval to the Texas operating permits will be the mechanism used to shall be recoverable in a maximum program. The submittal has been interchange information between the amount of not less than $10,000 per day reviewed for adequacy to meet the TNRCC, the EPA, the affected States, the per violation. The TCAA contains requirements of 40 CFR part 70 (1992). regulated community, and the general provisions which exceed the $10,000 The results of this review are included public. Such a database will give per day per violation for all cases except in the technical support document, interested parties an efficient for the filing fee criminal enforcement which will be available at the docket at mechanism to review the current provision. This filing fee provision the locations noted above. The submittal applicable requirements and the contained in section 382.092 of the has adequately addressed all 11 compliance status of a source. The EPA TCAA imposes a penalty for failing to elements required for interim approval is satisfied that the State has pay a required fee which is punishable as discussed in the part 70 regulation. demonstrated compelling reasons for a ‘‘for an individual by a fine of not more However, the EPA has in this notice source category-limited interim than twice the amount of the required described inconsistencies between the approval. fee, confined in jail not to exceed 90 Texas permit regulation and the part 70 Between the interim program and the days, or both fine and confinement and, regulation. These inconsistencies full program, the transition schedule for a corporation or association, by a involve both the permit regulation and requires the State to take final action on fine of not more than twice the amount program implementation, with regard to applications for 400 sites each of the of the required fee.’’ The preamble to applicability, permit application first two years, 1,000 sites the third year, part 70 regulation recommends that requirements, and permit issuance and and 600 sites each of the last two years. State enforcement authorities consider revision. It is essential that these Therefore, it is projected that 60 percent as criminal penalties not only fines, but inconsistencies be remedied by the State of the sources required to obtain also incarceration, so that State consistent with the Act and 40 CFR part operating permits will obtain those prosecutors will have more inducement 70 prior to the EPA granting full permits in the first three years of the to prosecute environmental crimes. approval of the State’s operating permits program. State-specific circumstances preclude Because this provision imposes a range program. the TNRCC from demonstrating of fines, confinement in jail, and Due to pending litigation involving coverage of sources which are imprisonment, the EPA is proposing to sections of 40 CFR part 70, the part 70 responsible for at least 80 percent of the accept that the TCAA meets the regulation may be revised. Any final aggregate emissions during the interim criminal enforcement provisions of part revisions may require the State to make period. The State will be required to 70. The EPA believes the filing fee regulatory and statutory changes. The State of Texas addressed all permit complex stationary sources such provision achieves the goal and intent of requirements necessary to receive as refineries and petrochemical plants. 40 CFR part 70. The EPA is soliciting interim approval of the State operating These complex plants can have as many comments on the proposed position. permits program pursuant to title V, as 3,000 emission units per source. The Texas’ operating permits program 1990 Amendments and part 70 (1992). State’s rationale for requesting interim submittal adequately addressed the approval is to permit these complex enforcement requirements of 40 CFR B. Options for Approval/Disapproval sources toward the end of the permit 70.4(b)(4) and 70.4(b)(5) in Volume 1 and Implications issuance period (rather than during the and the supplemental volume. The Pursuant to 40 CFR 70.4(d), Texas first two years). The State designed the submittal contains permit program requested that the EPA approve the interim program to bring in similar documentation such as draft copies of Texas Operating Permits Program as a types of sources and those which have the permit forms, application forms, source category-limited interim program the fewest number of emission points. public notice forms, certification forms, for a period of two years. The EPA is This will enable the State to spend its and compliance/enforcement reporting proposing to grant interim approval to resources on writing quality permits forms. Monitoring requirements are the operating permits program that are federally enforceable. The EPA contained in this guidance material submitted by Texas on November 15, is confident that the State is addressing including the types of monitoring used 1993, for a period of two years. enough sources in those first three years to demonstrate compliance. However, Volume 1 of the Texas operating to represent a significant portion of the this guidance may be subject to change permits program submittal includes the program. once the part 64 enhanced monitoring rationale for requesting interim rules are promulgated. The enforcement approval. The State projects that over III. Proposed Rulemaking Action program is described in the document 3,000 major sources will be subject to In this action, the EPA is proposing ‘‘Guidance on Compliance and the operating permits program. Many of source category-limited interim Enforcement Matters’’ found in these sources are complex. The EPA approval of the operating permits attachment IV of the State’s submittal. recognizes that a large percentage of the program submitted by the State of Volume 1 contains a complete Nation’s title V sources will be Texas. The program was submitted by description of the State’s compliance permitted by a single agency and that a the State to the EPA for the purpose of tracking and enforcement program ramp-up period is essential. The time complying with Federal requirements 30046 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules found in title V of the Act and in 40 CFR (2) To serve as the record in case of the Phoenix Planning Area (PPA) will part 70, which mandate that States judicial review. The EPA will consider be reclassified by operation of law as a develop, and submit to the EPA, any comments received by July 7, 1995. serious nonattainment area for PM–10 programs for issuing operating permits under section 188(b)(2)(A) of the CAA. B. Executive Order 12866 to all major stationary sources, and to DATES: Comments on this proposed certain other sources with the exception The Office of Management and Budget finding must be received in writing by of Indian Lands. has exempted this action from Executive July 7, 1995. Order 12866 review. Requirements for title V approval, ADDRESSES: Comments should be specified in 40 CFR 70.4(b), encompass C. Regulatory Flexibility Act addressed to Robert Pallarino, U.S. section 112(l)(5) requirements for The EPA’s actions under section 502 Environmental Protection Agency, approval of a mechanism for delegation of the Act do not create any new Region 9, Air and Toxics Division, Air of Federal section 112 standards as they requirements, but simply address Planning Branch, Plans Development apply to part 70 sources. Section operating permit programs submitted to Section (A–2–2), 75 Hawthorne Street, 112(l)(5) requires that the State’s satisfy the requirements of 40 CFR part San Francisco, California 94105. program contain adequate authorities, 70. Because this action does not impose FOR FURTHER INFORMATION CONTACT: adequate resources for implementation, any new requirements, it does not have Robert S. Pallarino, U.S. EPA, Region 9, and an expeditious compliance a significant impact on a substantial Air and Toxics Division, Air Planning schedule, which are also requirements number of small entities. Branch, Plans Development Section (A– under 40 CFR part 70. Therefore, as part 2–2), 75 Hawthorne Street, San of this interim approval, the EPA is also List of Subjects in 40 CFR Part 70 Francisco, California 94105, (415) 744– proposing to grant approval under Administrative practice and 1212. section 112(l)(5) and 40 CFR 63.91 of procedure, Air pollution control, SUPPLEMENTARY INFORMATION: the State’s mechanism for receiving Environmental protection, delegation of section 112 standards that Intergovernmental relations, Operating I. Background are unchanged from Federal standards permits, and Reporting and A. CAA Requirements and EPA Actions as promulgated when requested by the recordkeeping requirements. Concerning Designation and State. The State will receive delegation VI. Miscellaneous Classification of the remaining standards through other section 112(l) delegation A. Interim Approval On November 15, 1990, the date of processes. enactment of the 1990 Clean Air Act Proposed interim approval of the part Amendments, PM–10 areas meeting the The EPA has reviewed this submittal 70 operating permits program for the qualifications of section 107(d)(4)(B) of of the Texas operating permits program State of Texas. the Act were designated nonattainment and is proposing source category- Authority: 42 U.S.C. 7401–7671q. by operation of law. Once an area is limited interim approval for a period of Dated: May 3, 1995. designated nonattainment, section 188 two years. Certain defects in the State’s A. Stanley Meiburg, of the Act outlines the process for permit regulation and program Deputy Regional Administrator (6D). classification of the area and establishes implementation preclude the EPA from the area’s attainment date. Pursuant to granting full approval of the State’s [FR Doc. 95–13926 Filed 6–6–95; 8:45 am] BILLING CODE 6560±50±P section 188(a), all PM–10 nonattainment operating permits program at this time. areas were initially classified as The EPA is proposing to grant interim moderate by operation of law upon approval, subject to the State obtaining 40 CFR Part 81 designation as nonattainment. These the needed regulatory and program nonattainment designations and implementation revisions within 18 [FRL±5217±3] moderate area classifications were months after the Administrator’s Clean Air Act Reclassification; codified in 40 CFR part 81 in a Federal approval of the Texas title V program Register document published on pursuant to 40 CFR 70.4. Arizona-Phoenix Nonattainment Area; PM±10 November 6, 1991 (56 FR 56694). IV. Administrative Requirements States containing areas which were AGENCY: Environmental Protection designated as moderate nonattainment A. Request for Public Comments Agency (EPA). by operation of law under section ACTION: Proposed rule. 107(d)(4)(B) were to develop and submit The EPA is requesting comments on state implementation plans (SIPs) to all aspects of this proposed interim SUMMARY: In this action EPA proposes to provide for the attainment of the PM–10 approval. Copies of the State’s submittal find that the Phoenix metropolitan PM– NAAQS. Pursuant to section 189(a)(2), and other information relied upon for 10 nonattainment area has not attained those SIP revisions were to be submitted the proposed interim approval are the PM–10 national ambient air quality to EPA by November 15, 1991. contained in a docket maintained at the standards (NAAQS) by the Clean Air EPA Regional Office. The docket is an Act (CAA) mandated attainment date for B. Reclassification as Serious organized and complete file of all the moderate nonattainment areas. Section Nonattainment information submitted to, or otherwise 188(c)(1) of the Act established an EPA has the responsibility, pursuant considered by, the EPA in the attainment date of no later than to sections 179(c) and 188(b)(2) of the development of this proposed interim December 31, 1994 for areas classified Act, of determining within 6 months of approval. The principal purposes of the as moderate nonattainment areas under the applicable attainment date, whether docket are: section 107(d)(4)(B) of the CAA. This PM–10 nonattainment areas have (1) To allow interested parties a proposed finding is based on monitored attained the NAAQS. Section 179(c)(1) means to identify and locate documents air quality data for the PM–10 NAAQS of the Act provides that these so that they can effectively participate during the years 1992–94. If EPA takes determinations are to be based upon an in the approval process, and final action on this proposed finding, area’s ‘‘air quality as of the attainment Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30047 date’’, and section 188(b)(2) is The two monitoring sites in the PPA III. Request for Public Comment consistent with this requirement. EPA that recorded exceedances of the PM–10 The EPA is requesting comment on all makes the determinations of whether an NAAQS operate on a one in six day aspects of today’s proposal. As area’s air quality is meeting the PM–10 sampling schedule. Generally, if PM–10 indicated at the outset of this notice, NAAQS based upon air quality data sampling is scheduled less than every EPA will consider any comments gathered at monitoring sites in the day, EPA requires the adjustment of received by July 7, 1995. nonattainment area and entered into the observed exceedances to account for Aerometric Information Retrieval incomplete sampling. The method for IV. Executive Order (EO) 12866 System (AIRS). These data are reviewed adjusting the observed exceedances is Under E.O. 12866, 58 FR 51735 to determine the area’s air quality status described in 40 CFR Part 50, Appendix (October 4, 1993), EPA is required to in accordance with EPA guidance at 40 K, section 3.1. In the case of the Phoenix determine whether regulatory actions CFR part 50, Appendix K. site, two exceedances of the 24 hour are significant and therefore should be Pursuant to Appendix K, attainment NAAQS were observed in 1992. After subject to OMB review, economic of the annual PM–10 standard is adjusting for incomplete sampling, the analysis, and the requirements of the achieved when the annual arithmetic number of exceedances of the NAAQS Executive Order. The Executive Order mean PM–10 concentration is equal to in 1992 at this site was 13.1. In the case defines a ‘‘significant regulatory action’’ µ 3 or less than 50 g/m . Attainment of the of the Chandler site, one exceedance of as one that is likely to result in a rule 24 hour standard is determined by the 24 hour NAAQS was observed in that may meet at least one of the four calculating the expected number of 1992. After adjusting for incomplete criteria identified in section 3(f), µ 3 exceedances of the 150 g/m limit per sampling, the number of exceedances of including, under paragraph (1), that the year. The 24 hour standard is attained the NAAQS in 1992 at this site was rule may ‘‘have an annual effect on the when the expected number of 11.5. economy of $100 million or more or exceedances is 1.0 or less. A total of 3 According to 40 CFR part 50, the 24 adversely affect, in a material way, the consecutive years of clean air quality hour NAAQS is attained when the economy, a sector of the economy, data is generally necessary to show expected number of days per calendar productivity, competition, jobs, the attainment of the 24 hour and annual year with a 24 hour average environment, public health or safety, or standards for PM–10. A complete year concentration above 150 µg/m3 is equal State, local, or tribal governments or of air quality data, as referred to in 40 to or less than one. In the simplest case, communities.’’ CFR part 50, Appendix K, is comprised the number of expected exceedances at The Agency has determined that the of all 4 calendar quarters with each a site is determined by recording the finding of failure to attain proposed quarter containing data from at least 75 number of exceedances in each calendar today would result in none of the effects percent of the scheduled sampling days. year and then averaging them over the identified in section 3(f). Under section Under section 188(b)(2)(A) a moderate past three calendar years. Therefore 188(b)(2) of the CAA, findings of failure PM–10 nonattainment area must be from 1992–1994, the number of to attain and reclassification of reclassified as serious by operation of expected exceedances at the Phoenix nonattainment areas are based upon air law after the statutory attainment date if and Chandler monitoring sites were 4.4 quality considerations and must occur the Administrator finds that the area has and 3.8, respectively. These by operation of law in light of certain air failed to attain the NAAQS. Pursuant to exceedances cause both the Phoenix site quality conditions. They do not, in-and- section 188(b)(2)(B) of the Act, EPA and the Chandler site to be in violation of-themselves, impose any new must publish a document in the Federal of the 24 hour PM–10 NAAQS. requirements on any sectors of the Register identifying those areas that In addition to violations of the 24 economy. In addition, because the failed to attain the standard and the hour NAAQS, the annual standard has statutory requirements are clearly resulting reclassifications. not been attained at one monitoring site. defined with respect to the differently II. Today’s Action The East Pecos site in Chandler had an classified areas, and because those annual average of 55 µg/m3, based on requirements are automatically triggered EPA is, by today’s action, proposing the monitoring data collected during by classifications that, in turn, are to find that the PPA did not attain the 1992–1994. triggered by air quality values, findings PM–10 NAAQS by the required of failure to attain and reclassification attainment date of December 31, 1994. B. SIP Requirements for Serious Areas cannot be said to impose a materially As discussed below, this proposed PM–10 nonattainment areas adverse impact on State, local, or tribal finding is based upon air quality data reclassified as serious under section governments or communities. which revealed violations of the PM–10 188(b)(2) of the CAA are required to NAAQS during 1992–1994. submit, within 18 months of the area’s V. Regulatory Flexibility A. Ambient Air Monitoring Data reclassification, SIP revisions providing Under the Regulatory Flexibility Act, for the implementation of best available 5 U.S.C. 600 et seq., EPA must prepare The following table lists each of the control measures (BACM) no later than a regulatory flexibility analysis monitoring sites in the PPA where the four years from the date of assessing the impact of any proposed or 24 hour PM–10 NAAQS has been reclassification. The SIP also must final rule on small entities. 5 U.S.C. 603 exceeded during 1992–1994: contain a demonstration that the and 604. Alternatively, EPA may certify 24 hour con- implementation of BACM will provide that the rule will not have a significant Monitoring site centration Date for attainment of the PM–10 NAAQS no impact on a substantial number of small later than December 31, 2001. EPA has entities. Small entities include small 4732 S. 171 µg/m3 11/20/92 provided specific guidance on businesses, small not-for-profit Central, PX. developing serious area PM–10 SIP enterprises, and government entities µ 3 4732 S. 158 g/m 12/2/92 revisions in an addendum to the with jurisdiction over populations of Central, PX. General Preamble to Title I of the Clean less than 50,000. 1475 E. Pecos, 156 µg/m3 11/20/92 CHAN. Air Act. See 59 FR 41998 (August 16, As discussed in section IV of this 1994). notice, findings of failure to attain and 30048 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules reclassification of nonattainment areas DATES: Comments identified by the proposing to amend 40 CFR part 180 by under section 188(b)(2) of the CAA do docket number, [PP 0F3885/R2142], establishing a regulation pursuant to the not in-and-of-themselves create any new must be received on or before July 7, Federal Food, Drug and Cosmetic Act requirements. Therefore, I certify that 1995. (21 U.S.C. 346a and 371), to exempt today’s proposed action does not have a ADDRESSES: Submit written comments from the requirement of a tolerance the significant impact on small entities. by mail to: Public Response and residues of the biological pesticide Pseudomonas cepacia type Wisconsin VI. Unfunded Mandates Program Resources Branch, Field Operations Division (7506C), Office of in or on all raw agricultural Under sections 202, 203 and 205 of Pesticide Programs, Environmental commodities when applied as a seed the Unfunded Mandates Reform Act of Protection Agency, 401 M St., SW., treatment for growing agricultural crops 1995 (Unfunded Mandates Act), signed Washington, DC 20460. In person, bring in accordance with good agricultural into law on March 22, 1995, EPA must comments to: Public Docket, Rm. 1132, practices. There were no comments assess whether various actions Crystal Mall #2, 1921 Jefferson Davis received in response to the notice. undertaken in association with Hwy., Arlington, VA 22202. Information In the Federal Register of December proposed or final regulations include a submitted as a comment concerning this 23, 1992 (57 FR 61003), an exemption Federal mandate that may result in document may be claimed confidential from the requirement of a tolerance was estimated costs of $100 million or more by marking any part or all of that established for residues of the biological to the private sector, or to State, local or information as ‘‘Confidential Business pesticide Pseudomonas cepacia type tribal governments in the aggregate. Information’’ (CBI). Information so Wisconsin in or on all raw agricultural EPA believes, as discussed earlier in marked will not be disclosed except in commodities when applied as a seed section IV of this notice, that the accordance with procedures as set forth treatment for growing agricultural crops proposed finding of failure to attain and in 40 CFR part 2. A copy of the in accordance with good agricultural reclassification of the Phoenix Planning comment that does not contain CBI practices. Area are factual determinations based must be submitted for inclusion in the Stine Microbial Products has upon air quality considerations and public record. Information not marked subsequently proposed a new use site, must occur by operation of law and, confidential will be included in the plant roots or seedling roots. Like the hence, do not impose any federal public docket by EPA without prior seed treatment use for which an intergovernmental mandate, as defined notice. The public docket is available exemption from the requirement of a tolerance now exists (40 CFR 180.1115), in section 101 of the Unfunded for public inspection in Rm. 1132 at the Pseudomonas cepacia type Wisconsin Mandates Act. above address, from 8 a.m. to 4:30 p.m., applied to plant roots or seedling roots Monday through Friday, excluding legal List of Subjects in 40 CFR Part 81 will colonize the developing root holidays. Environmental protection, Air Comments and data may also be system, and by producing antibiotics, pollution control, Intergovernmental submitted electronically by sending protect the seedling or plant from a relations, Particulate matter. electronic mail (e-mail) to: opp- range of plant pathogenic fungi and [email protected]. Electronic nematodes. The Agency has determined Authority: 42 U.S.C. 7401–7671q. that this presents no new hazard issues comments must be submitted as an Dated: May 25, 1995. and that the following originally ASCII file avoiding the use of special David P. Howekamp, submitted data can support the characters and any form of encryption. Acting Regional Administrator. registration for use as a soil, seed, or Comments and data will also be seedling treatment: [FR Doc. 95–13925 Filed 6–6–95; 8:45 am] accepted on disks in WordPerfect in 5.1 BILLING CODE 6560±50±P The organism is a naturally occurring file format or ASCII file format. All biotype of the bacterial species comments and data in electronic form Pseudomonas cepacia which is found 40 CFR Part 180 must be identified by the docket number world wide. The original isolates of [PP 0F3885/R2142]. No Confidential Pseudomonas cepacia type Wisconsin [PP 0F3885/R2142; FRL±4958±9] Business Information (CBI) should be were identified as colonizers of the roots submitted through e-mail. Electronic RIN 2070±AC18 and rhizospheres of maize. Further comments on this proposed rule may be testing indicated that this biotype will filed online at many Federal Depository Burkholderia (Pseudomonas) Cepacia colonize roots of many crop plants. Libraries. Additional information on Type Wisconsin; Tolerance Exemption Pseudomonas cepacia type Wisconsin electronic submissions can be found has been shown to produce antibiotics AGENCY: Environmental Protection below in this document. which are effective against a diverse Agency (EPA). FOR FURTHER INFORMATION CONTACT: By range of plant pathogenic fungi. ACTION: Proposed rule. mail: Denise Greenway, Biopesticides Pseudomonas cepacia type Wisconsin is and Pollution Prevention Division not generally regarded as a human or SUMMARY: This document proposes that (7501W), Environmental Protection animal pathogen. Products containing an exemption from the requirement of a Agency, 401 M St., SW., Washington, this organism are intended to be used tolerance be established for residues of DC 20460. Office location and telephone for formulating other end-use products the biological pesticide Burkholderia number: Rm. CS51L6, Crystal Station or as a seed treatment (and the proposed (Pseudomonas) cepacia type Wisconsin #1, 2800 Crystal Drive, Arlington, VA plant root and seedling root use). When in or on all raw agricultural 22202, (703)-308-8263; e-mail: applied to seeds (or plant or seedling commodities, resulting from use on [email protected]. roots), the bacteria colonize the plant roots or seedling roots. EPA is SUPPLEMENTARY INFORMATION: In the developing root system, and by proposing this regulation on its own Federal Register of April 3, 1991 (56 FR producing antibiotics, protect the initiative. The proposal would amend 13642), EPA issued a notice that Stine seedling from a range of plant the existing tolerance exemption for this Microbial Products, 4722 Pflaum Rd., pathogenic fungi and nematodes. organism, which is limited to the seed Madison, WI 53704, had submitted The data submitted in the petition treatment use. pesticide petition (PP) 0F3885 to EPA and other relevant material have been Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30049 evaluated. The toxicological data genus Burkholderia. To reduce The official record for this considered in support of the exemption confusion by completely changing the rulemaking, as well as the public from the requirement of a tolerance organism name, it is proposed that the version, as described above will be kept include an acute oral toxicity/ former genus name be inserted in paper form. Accordingly, EPA will pathogenicity study, an acute dermal parenthetically after the new one, transfer all comments received toxicity study, an acute pulmonary Burkholderia (Pseudomonas) cepacia. electronically into printed, paper form toxicity/pathogenicity study, and an Burkholderia (Pseudomonas) cepacia as they are received and will place the acute intravenous toxicity/pathogenicity type Wisconsin is considered useful for paper copies in the official rulemaking study. All studies were conducted with the purposes for which the exemption record which will also include all the rat as the test animal. A review of from the requirement of a tolerance is comments submitted directly in writing. these studies indicated that the sought. Based on the information The official rulemaking record is the organism was not acutely toxic to test considered, the Agency concludes that paper record maintained at the address animals when administered via dermal the establishment of a tolerance is not in ‘‘ADDRESSES’’ at the beginning of and intravenous routes. The active necessary to protect the public health. this document. ingredient was not infective or Therefore, EPA proposes that an pathogenic to test animals when exemption from the requirement of a The Office of Management and Budget administered via the oral, pulmonary, or tolerance be established as set forth has exempted this document from the intravenous route. No reports of below. requirement of review pursuant to hypersensitivity have been recorded Any person who has registered or Executive Order 12866. from personnel working with this submitted an application for registration Pursuant to the requirements of the organism. All of the toxicity studies of a pesticide under the Federal Regulatory Flexibility Act (Pub. L. 96- submitted are considered acceptable. Insecticide, Fungicide, and Rodenticide 354, 94 Stat. 1164, 5 U.S.C. 601-612), The toxicity data provided are sufficient Act (FIFRA) as amended, which the Administrator has determined that to show that there are no foreseeable contains the ingredient listed herein, regulations establishing new tolerances health hazards to humans or domestic may request within 30 days after the or raising tolerance levels or animals likely to arise from the use of publication of this document in the establishing exemptions from tolerance this organism as a seed (or seedling root Federal Register that this rulemaking requirements do not have a significant or plant root) treatment. proposal be referred to an Advisory economic impact on a substantial Residue chemistry data were not Committee in accordance with section number of small entities. A certification required; such data are necessary only if 408(e) of the Federal Food, Drug, and statement to this effect was published in the submitted toxicity studies indicate Cosmetic Act (FFDCA). the Federal Register of May 4, 1981 (46 Interested persons are invited to that additional Tier II or Tier III FR 24950). toxicology data are needed. These submit written comments on the additional data were not needed. proposed regulation. Comments must List of Subjects in 40 CFR Part 180 Therefore, no residue data are required bear a notation indicating the document to establish an exemption from the control number, [PP 0F3885/R2142]. All Environmental protection, requirement of a tolerance for the written comments filed in response to Administrative practice and procedure, biological pesticide Pseudomonas this petition will be available in the Agricultural commodities, Pesticides cepacia type Wisconsin in or on all raw Public Response and Program Resources and pests, Reporting and recordkeeping agricultural commodities when applied Branch at the above address from 8 a.m. requirements. to plant roots and seedling roots or used to 4:30 p.m., Monday through Friday, Dated: June 1, 1995. as a seed treatment for growing except legal holidays. agricultural crops in accordance with A record has been established for this Janet L. Andersen, good agricultural practices. rulemaking under docket number [PP Acting Director, Biopesticides and Pollution Acceptable daily intake (ADI) and 0F3885/R2142] (including comments Prevention Division, Office of Pesticide maximum permissible intake (MPI) and data submitted electronically as Programs. considerations are not relevant to this described below). A public version of petition because the data submitted this record, including printed, paper Therefore, it is proposed that 40 CFR demonstrated that this biological control versions of electronic comments, which part 180 be amended as follows: agent is not toxic to humans. No does not include any information enforcement actions are expected. claimed as CBI, is available for PART 180Ð[AMENDED] Therefore, the requirement for an inspection from 8 a.m. to 4:30 p.m., analytical method for enforcement Monday through Friday, excluding legal 1. The authority citation for part 180 purposes is not applicable to this holidays. The public record is located in continues to read as follows: exemption request. Room 1132 of the Public Response and Authority: 21 U.S.C. 346a and 371. The Agency hereby takes the initiative Program Resources Branch, Field to amend the current tolerance Operations Division (7506C), Office of 2. Section 180.1115 is revised to read exemption (40 CFR 180.1115) by Pesticide Programs, Environmental as follows: expanding it to include the proposed Protection Agency, Crystal Mall #2, use on plant roots and seedling roots. § 180.1115 Burkholderia (Pseudomonas) 1921 Jefferson Davis Highway, cepacia type Wisconsin; exemption from The Agency also proposes that the Arlington, VA. the requirement of a tolerance. exemption from the requirement of a Electronic comments can be sent tolerance be further amended to update directly to EPA at: The biological pesticide Burkholderia the organism name. There has been a [email protected] (Pseudomonas) cepacia type Wisconsin recent change in the bacterial taxonomy is exempted from the requirement of a affecting the generic affiliation of the Electronic comments must be tolerance in or on all raw agricultural RNA group II pseudomonads and submitted as an ASCII file avoiding the commodities when applied to plant moving them from the genus use of special characters and any form roots and seedling roots, or as a seed Pseudomonas to the newly described of encryption. treatment for growing agricultural crops 30050 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules in accordance with good agricultural file format or ASCII file format. All final SNUR are subject to the export practices. comments and data in electronic form notification provisions of TSCA section [FR Doc. 95–13961 Filed 6–6–95; 8:45 am] must be identified by the docket number 12(b). The regulations that interpret OPPTS–50615B. No CBI should be section 12(b) appear at 40 CFR part 707. BILLING CODE 6560±50±F submitted through e-mail. Electronic II. Applicability of General Provisions comments on this proposed rule may be General regulatory provisions 40 CFR Part 721 filed online at many Federal Depository Libraries. Additional information on applicable to SNURs are codified at 40 [OPPTS±50615B; FRL±4916±4] electronic submissions can be found in CFR part 721, subpart A. On July 27, Unit VIII. of this document. 1988 (53 FR 28354), and July 27, 1989 RIN 2070±AB27 FOR FURTHER INFORMATION CONTACT: (54 FR 31298), EPA promulgated amendments to the general provisions Organotin Lithium Compound; Susan B. Hazen, Director, which apply to this SNUR. In the Proposed Significant New Use Rule Environmental Assistance Division (7408), Office of Pollution Prevention Federal Register of August 17, 1988 (53 AGENCY: Environmental Protection and Toxics, Environmental Protection FR 31252), EPA promulgated a ‘‘User Agency (EPA). Agency, Rm. E–543B, 401 M St., SW., Fee Rule’’ (40 CFR part 700) under the authority of TSCA section 26(b). ACTION: Proposed rule. Washington, DC 20460, Telephone: (202) 554–1404, TDD: (202) 554–0551. Provisions requiring persons submitting SUMMARY: EPA is proposing a significant SUPPLEMENTARY INFORMATION: This SNUNs to submit certain fees to EPA are new use rule (SNUR) under section proposed SNUR would require persons discussed in detail in that Federal 5(a)(2) of the Toxic Substances Control to notify EPA at least 90 days before Register document. Interested persons Act (TSCA) for the chemical substance commencing the manufacture, import, should refer to these documents for described generically as an organotin or processing of P–93–1119 for the further information. lithium compound which is the subject significant new uses designated herein. III. Background of premanufacture notice (PMN) P–93– The required notice would provide EPA with information with which to evaluate EPA published a direct final SNUR for 1119. This proposal would require the chemical substance which was the certain persons who intend to an intended use and associated activities. subject of PMN P–93–1119 in the manufacture, import, or process this Federal Register of May 27, 1994 (59 FR substance for a significant new use to I. Authority 27474). EPA received adverse comments notify EPA at least 90 days before following publication for this chemical commencing any manufacturing, Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine substance. Therefore, as required by 40 importing, or processing activities for a CFR 721.160, the final SNUR for P–93– use designated by this SNUR as a that a use of a chemical substance is a ‘‘significant new use.’’ EPA must make 1119 is being revoked elsewhere in this significant new use. The required notice issue of the Federal Register and this would provide EPA with the this determination by rule after considering all relevant factors, proposed rule on the substance is being opportunity to evaluate the intended including those listed in section 5(a)(2). issued. use and, if necessary, to prohibit or limit Once EPA determines that a use of a The comments were submitted by the that activity before it can occur. chemical substance is a significant new PMN submitter’s customer for this DATES: Written comments must be use, section 5(a)(1)(B) of TSCA requires substance. The commenter proposed received by EPA by July 7, 1995. persons to submit a notice to EPA at changing the requirements of the SNUR. ADDRESSES: Each comment must bear least 90 days before they manufacture, Based on potential toxicity to the the docket control number OPPTS– import, or process the chemical environment, the direct final SNUR 50615B. All comments should be sent in substance for that use. Section 26(c) of required notification if the substance triplicate to: OPPT Document Control TSCA authorizes EPA to take action was predictably or purposefully Officer (7407), Office of Pollution under section 5(a)(2) with respect to a released to surface waters. The Prevention and Toxics, Environmental category of chemical substances. commenter proposed a SNUR requiring Protection Agency, Rm. E–G99, 401 M Persons subject to this SNUR would notification if the substance was St., SW., Washington, DC 20460. All comply with the same notice predictably or purposefully released to comments which are claimed requirements and EPA regulatory surface waters above a concentration of confidential must be clearly marked as procedures as submitters of 1 ppb (part per billion) according to the such. Three additional sanitized copies premanufacture notices under section formula in 40 CFR 721.90. of any comments containing 5(a)(1) of TSCA. In particular, these The direct final SNUR was based on confidential business information (CBI) requirements include the information the information in the PMN that must also be submitted. Nonconfidential submission requirements of sections manufacture and use of the PMN versions of comments on this proposed 5(b) and (d)(1), the exemptions substance as a catalyst would not result rule will be placed in the rulemaking authorized by section 5(h)(1), (h)(2), in releases to surface waters. The record and will be available for public (h)(3), and (h)(5), and the regulations at commenter demonstrated through a inspection. See Unit VII. of this 40 CFR part 720. Once EPA receives a pilot study and analytical measurements document for further information. significant new use notice (SNUN), EPA that the substance would be released to Comments and data may also be may take regulatory action under surface waters. The commenter also submitted electronically by sending section 5(e), 5(f), 6, or 7 to control the demonstrated that treatment at that electronic mail (e-mail) to: activities for which it has received a particular plant site would result in [email protected]. Electronic SNUN. If EPA does not take action, surface water concentrations below comments must be submitted as an section 5(g) of TSCA requires EPA to EPA’s original 1 ppb concern ASCII file avoiding the use of special explain in the Federal Register its concentration. Because the data characters and any form of encryption. reasons for not taking action. demonstrate that releases to water could Comments and data will also be Persons who intend to export a occur but would not exceed the 1 ppb accepted on disks in WordPerfect in 5.1 substance identified in a proposed or concern level at the intended site of Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30051 manufacture, EPA is proposing this V. Applicability of SNUR to Uses in the public record for this proposed SNUR with a water trigger of 1 ppb as Occurring Before Effective Date of the rule (OPPTS–50615B). a significant new use. Final SNUR VII. Comments Containing Confidential EPA is not soliciting and will not EPA has decided that the intent of Business Information respond in this proposal to comments section 5(a)(1)(B) is best served by on any of the other SNURs that were designating a use as a significant new Any person who submits comments published in the May 27, 1994 Federal use as of the date of proposal rather than containing information claimed as CBI Register because those rules either as of the effective date of the rule. must mark the comments as became final, effective July 25, 1994, or Because this SNUR was first published ‘‘confidential,’’ ‘‘trade secret,’’ or other EPA is addressing written comments on May 27, 1994, as a direct final rule, appropriate designation. Comments not claimed as confidential at the time of concerning those rules in a separate that date will serve as the date after submission will be placed in the public rulemaking. Except for the use of the 1 which uses would be considered to be file without further notice to the ppb level, the supporting rationale and new uses. If uses which had submitter. Any comments marked as background to this proposal are more commenced between that date and the confidential will be treated in fully set out in the preamble to the effective date of this rulemaking were accordance with the procedures in 40 direct final SNUR for this substance and considered ongoing, rather than new, CFR part 2. Any party submitting in the preamble to EPA’s first direct any person could defeat the SNUR by comments claimed to be confidential final SNURs published in the Federal initiating a significant new use before must prepare and submit a Register of April 24, 1990 (55 FR the effective date. This would make it nonconfidential public version in 17376). Consult those preambles for difficult for EPA to establish SNUN triplicate of the comments that EPA can further information on the objectives, requirements. Thus, persons who begin place in the public file. rationale, and procedures for the commercial manufacture, import, or proposal and on the basis for significant processing of the substance for uses that VIII. Rulemaking Record new use designations including would be regulated through this SNUR provisions for developing test data. after May 27, 1994, would have to cease A record has been established for this any such activity before the effective rulemaking under docket number IV. Substance Subject to This Rule date of the rule. To resume their OPPTS–50615B (including comments EPA is proposing significant new use activities, such persons would have to and data submitted electronically as and recordkeeping requirements for the comply with all applicable SNUN described below). EPA will accept additional materials for inclusion in the following chemical substance under 40 requirements and wait until the notice record at any time between this CFR part 721. review period, including all extensions, expires. EPA, not wishing to proposal and designation of the PMN Number P±93±1119 unnecessarily disrupt the activities of complete record. EPA will identify the persons who begin commercial complete rulemaking record by the date Chemical name: (generic) Organotin manufacture, import, or processing for a of promulgation. A public version of lithium compound. proposed significant new use before the this record, including printed, paper CAS number: Not available. effective date of the SNUR, has versions of electronic comments, which Toxicity concern: The substance will be promulgated provisions to allow such does not include any information claimed as CBI, is available for used as a catalyst. Test data on persons to comply with this proposed inspection from 12 noon to 4 p.m., organotin pesticides indicate that the SNUR before it is promulgated. If a Monday through Friday, excluding legal substance may cause toxicity to aquatic person were to meet the conditions of holidays. The public record is located in organisms. Based on these data, EPA advance compliance as codified at the TSCA Nonconfidential Information expects toxicity to aquatic organisms to § 721.45(h), the person would be considered to have met the Center, Rm. NE–B607, 401 M St., SW., occur at a concentration of 1 ppb of the Washington, DC 20460. substance in surface waters. EPA requirements of the final SNUR for determined that use of the substance as those activities. If persons who begin Electronic comments can be sent described in the PMN did not present an commercial manufacture, import, or directly to EPA at: unreasonable risk because the substance processing of the substance between [email protected] would not be released to surface waters proposal and the effective date of the Electronic comments must be above a concentration of 1 ppb. EPA has SNUR do not meet the conditions of advance compliance, they must cease submitted as an ASCII file avoiding the determined that manufacture, that activity before the effective date of use of special characters and any form processing, and use of the substance for the rule. To resume their activities, of encryption. uses other than as a catalyst could result these persons would have to comply in releases to surface waters above 1 The official record for this with all applicable SNUN requirements ppb. Based on this information, the rulemaking, as well as the public and wait until the notice review period, version, as described above will be kept substance meets the concern criteria at including all extensions, expires. § 721.170(b)(4)(iii). in paper form. Accordingly, EPA will VI. Economic Analysis transfer all comments received Recommended testing: EPA has electronically into printed, paper form determined that a fish acute toxicity EPA evaluated the potential costs of as they are received and will place the study (40 CFR 797.1400), a daphnid establishing SNUN requirements for paper copies in the official rulemaking acute toxicity study (40 CFR 797.1300), potential manufacturers, importers, and record which will also include all and an algal acute toxicity study (40 processors of the chemical substance at comments submitted directly in writing. CFR 797.1050) would help characterize the time of the direct final rule. The The official rulemaking record is the the environmental effects of the PMN analysis is unchanged for the substance paper record maintained at the address substance. in this proposed rule. The Agency’s in ‘‘ADDRESSES’’ at the beginning of CFR citation: 40 CFR 721.9668. complete economic analysis is available this document. 30052 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules IX. Regulatory Assessment including time for reviewing provisions of § 721.185 apply to this Requirements instructions, searching existing data section. sources, gathering and maintaining the A. Executive Order 12866 [FR Doc. 95–13964 Filed 6–6–95; 8:45 am] data needed, and completing and BILLING CODE 6560±50±F Under Executive Order 12866 (58 FR reviewing the collection of information. 51735, October 4, 1993), the Agency Send comments regarding the burden must determine whether the regulatory estimate or any other aspect of this FEDERAL EMERGENCY action is ‘‘significant’’ and therefore collection of information, including MANAGEMENT AGENCY subject to all the requirements of the suggestions for reducing this burden, to Executive Order (i.e., Regulatory Impact Chief, Information Policy Branch (2131), 44 CFR Part 67 Analysis, review by the Office of Environmental Protection Agency, 401 [Docket No. FEMA±7142] Management and Budget (OMB)). Under M St., SW., Washington, DC 20460; and section 3(f), the order defines a to Office of Information and Regulatory ‘‘significant regulatory action’’ as an Proposed Flood Elevation Affairs, Office of Management and Determinations action likely to lead to a rule (1) Having Budget, Washington, DC 20503, marked an annual effect on the economy of $100 ‘‘Attention: Desk Officer for EPA.’’ The AGENCY: Federal Emergency million or more, or adversely and final rule will respond to any OMB or Management Agency (FEMA). materially affecting a sector of the public comments on the information ACTION: Proposed rule. economy, productivity, competition, requirements contained in this proposal. jobs, the environment, public health or SUMMARY: Technical information or safety, or State, local or tribal List of Subjects in 40 CFR Part 721 comments are requested on the governments or communities (also proposed base (100-year) flood Environmental protection, Chemicals, referred to as ‘‘economically elevations and proposed base (100-year) Hazardous materials, Reporting and significant’’); (2) creating serious flood elevation modifications for the recordkeeping requirements, Significant inconsistency or otherwise interfering communities listed below. The base new uses. with an action taken or planned by (100-year) flood elevations and modified another agency; (3) materially altering Dated: May 19, 1995. base (100-year) flood elevations are the the budgetary impacts of entitlement, Charles M. Auer, basis for the floodplain management grants, user fees, or loan programs or the Director, Chemical Control Division, Office measures that the community is rights and obligations of recipients of Pollution Prevention and Toxics. required either to adopt or to show thereof; or (4) raising novel legal or Therefore, it is proposed that 40 CFR evidence of being already in effect in policy issues arising out of legal part 721 be amended as follows: order to qualify or remain qualified for mandates, the President’s priorities, or participation in the National Flood the principles set forth in this Executive PART 721Ð[AMENDED] Insurance Program (NFIP). Order. DATES: The comment period is ninety Pursuant to the terms of this 1. The authority citation for part 721 (90) days following the second Executive Order, it has been determined would continue to read as follows: publication of this proposed rule in a that this proposed rule would not be Authority: 15 U.S.C. 2604, 2607, and newspaper of local circulation in each ‘‘significant’’ and is therefore not subject 2625(c). community. to OMB review. ADDRESSES: The proposed base flood 2. By adding new § 721.9668 to B. Regulatory Flexibility Act elevations for each community are subpart E to read as follows: Under the Regulatory Flexibility Act available for inspection at the office of (5 U.S.C. 605(b)), EPA has determined § 721.9668 Organotin lithium compound. the Chief Executive Officer of each community. The respective addresses that this proposed rule would not have (a) Chemical substance and are listed in the following table. a significant impact on a substantial significant new uses subject to reporting. number of small businesses. EPA has (1) The chemical substance identified FOR FURTHER INFORMATION CONTACT: determined that approximately 10 generically as organotin lithium Michael K. Buckley, P.E., Chief, Hazard percent of the parties affected by this compound (PMN P–93–1119) is subject Identification Branch, Mitigation proposed rule could be small to reporting under this section for the Directorate, 500 C Street, SW, businesses. However, EPA expects to significant new uses described in Washington, DC 20472, (202) 646–2756. receive few SNUNs for this substance. paragraph (a)(2) of this section. SUPPLEMENTARY INFORMATION: The Therefore, EPA believes that the number (2) The significant new uses are: Federal Emergency Management Agency proposes to make determinations of base of small businesses affected by this (i) Release to water. Requirements as flood elevations and modified base proposed rule will not be substantial, specified in § 721.90(a)(4), (b)(4), and flood elevations for each community even if all of the SNUN submitters were (c)(4) (N = 1 ppb). small firms. listed below, in accordance with Section (ii) [Reserved] 110 of the Flood Disaster Protection Act C. Paperwork Reduction Act. (b) Specific requirements. The of 1973, 42 U.S.C. 4104, and 44 CFR OMB has approved the information provisions of subpart A of this part 67.4(a). collection requirements contained in apply to this section except as modified These proposed base flood and this proposed rule under the provisions by this paragraph. modified base flood elevations, together of the Paperwork Reduction Act (44 (1) Recordkeeping. Recordkeeping with the floodplain management criteria U.S.C. 3501 et seq.), and has assigned requirements as specified in required by 44 CFR 60.3, are the OMB control number 2070–0012. Public § 721.125(a), (b), (c), and (k) are minimum that are required. They reporting burden for this collection of applicable to manufacturers, importers, should not be construed to mean that information is estimated to vary from 30 and processors of this substance. the community must change any to 170 hours per response, with an (2) Limitations or revocation of existing ordinances that are more average of 100 hours per response, certain notification requirements. The stringent in their floodplain Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30053 management requirements. The proposed or modified base flood Executive Order 12778, Civil Justice community may at any time enact elevations are required by the Flood Reform stricter requirements of its own, or Disaster Protection Act of 1973, 42 This proposed rule meets the pursuant to policies established by other U.S.C. 4104, and are required to applicable standards of Section 2(b)(2) Federal, State, or regional entities. establish and maintain community of Executive Order 12778. These proposed elevations are used to eligibility in the NFIP. No regulatory meet the floodplain management flexibility analysis has been prepared. List of Subjects in 44 CFR Part 67 requirements of the NFIP and are also Administrative practice and Regulatory Classification used to calculate the appropriate flood procedure, Flood insurance, Reporting insurance premium rates for new This proposed rule is not a significant and recordkeeping requirements. buildings built after these elevations are Accordingly, 44 CFR part 67 is made final, and for the contents in these regulatory action under the criteria of proposed to be amended as follows: buildings. Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory National Environmental Policy Act Planning and Review, 58 FR 51735. PART 67Ð[AMENDED] This proposed rule is categorically Executive Order 12612, Federalism 1. The authority citation for Part 67 excluded from the requirements of 44 continues to read as follows: CFR part 10, Environmental This proposed rule involves no Consideration. No environmental policies that have federalism Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, impact assessment has been prepared. implications under Executive Order 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, Regulatory Flexibility Act 12612, Federalism, dated October 26, 3 CFR, 1979 Comp., p. 376. 1987. The Associate Director, Mitigation § 67.4 Amended Directorate, certifies that this proposed 2. The tables published under the rule is exempt from the requirements of authority of § 67.4 are proposed to be the Regulatory Flexibility Act because amended as follows: #Depth in feet above City/town/ ground. *Elevation in feet. State county Source of flooding Location (NGVD) Existing Modified Arkansas ...... Bryant (City), Saline Crooked Creek ...... At corporate limits ...... *351 *349 County. At Mills Park Road ...... *354 *354 At Ridgecrest Road ...... *373 *373 Bryant Tributary ...... At confluence with Crooked Creek ...... *353 *352 At private drive ...... *372 *372 Trailer Park Ditch ...... At downstream corporate limit ...... None *348 At upstream corporate limit ...... None *348 At confluence of Bryant Tributary and None *352 Crooked Creek. Maps are available for inspection at 210 Southwest Third Street, Bryant, Arkansas. Send comments to The Honorable Roy Bishop, Mayor of Bryant, 210 Southwest Third Street, Bryant, Arkansas 72022. Arkansas ...... Saline County, (Un- Crooked Creek ...... At Brookwood Road (County Road 612) .. *336 *336 incorporated Areas). Approximately 215 feet upstream of None *337 Brookwood Road (County Road 612). Approximately 1,110 feet upstream of None *345 Brookwood Road (County Road 612). Trailer Park Ditch ...... At Brookwood Road ...... None *348 Bryant Tributary ...... At confluence with Crooked Creek ...... None *352 At corporate limit ...... None *365 Maps are available for inspection at the Saline County Assessor's Office, 215 North Main, Benton, Arkansas. Send comments to The Honorable Terry Parsons, Saline County Judge, 200 North Main, Benton, Arkansas 72015. Colorado ...... Fort Collins (City), Cooper Slough ...... Approximately 150 feet downstream of None *4,938 Larimer County. the Colorado & Southern Railroad. At confluence of East Island Divide ...... None *4,944 At divergence of East Island Divide ...... None *4,951 Just upstream of Vine Drive ...... None *4,957 Sherry Drive Overflow ...... Just upstream of Prospect Road ...... None *4,902 Approximately 1,000 feet upstream of None *4,903 Prospect Road. Approximately 3,400 feet upstream of None *4,913 Prospect Road. Approximately 4,300 feet upstream of None *4,916 Prospect Road. East Island Divide ...... At confluence with Cooper Slough ...... None *4,944 30054 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules #Depth in feet above City/town/ ground. *Elevation in feet. State county Source of flooding Location (NGVD) Existing Modified 1,000 feet upstream of confluence with None *4,947 Cooper Slough. At divergence with Cooper Slough ...... None *4,951 State Highway 14 Over- Approximately 300 feet above confluence None *4,914 flow. with Lake Canal. Approximately 800 feet above confluence None *4,916 with Lake Canal. Spring Creek ...... At confluence with Cache La Poudre *4,896 *4,899 River. Just upstream of East Prospect Road ...... *4,909 *4,905 Just upstream of Timberline Road ...... *4,914 *4,907 Just downstream of the Union Pacific *4,917 *4,916 Railroad. Just upstream of Welch Street ...... *4,938 *4,937 Just upstream of Lemay Avenue ...... *4,949 *4,942 Just upstream of Stover Street ...... *4,967 *4,960 Just upstream of Remington Street ...... *4,981 *4,980 Approximately 650 feet upstream of *4,989 *4,993 South College Avenue. Just upstream of South Shields Street ..... *5,016 *5,013 Just upstream of West Drake Road ...... *5,056 *5,057 Just upstream of South Taft Hill Road ..... None *5,083 Approximately 3,000 feet upstream of None *5,096 South Taft Hill Road. Approximately 5,300 feet upstream of None *5,110 South Taftt Hill Road. Just upstream of West Horsetooth Road . None *5,137 Approximately 1,450 feet upstream of None *5,149 West Horsetooth Road. Cache La Poudre River Approximately 4,300 feet upstream of *4,878 *4,872 South of Burlington confluence with Boxelder Creek. Northern Railroad Em- bankment. Cache La Poudre River At confluence of Boxelder Creek ...... *4,869 *4,866 North of Burlington Northern Railroad Em- bankment. At confluence of Cache La Poudre Low *4,874 *4,873 Flow Channel. At confluence of Cache La Poudre Left *4,883 *4,879 Flow Path (LPATH). Cache La Poudre River .... Just downstream of the Burlington North- *4,863 *4,858 ern Railroad. At divergence with Cache La Poudre Low *4,884 *4,883 Flow Channel. Approximately 3,500 feet downstream of *4,884 *4,886 East Prospect Road. Just upstream of East Prospect Road ...... *4,895 *4,889 At confluence of Spring Creek ...... *4,897 *4,900 At confluence of Cache La Poudre Right *4,902 *4,902 Flow Path (RPATH). At divergence of Cache La Poudre Left *4,914 *4,913 Flow Path (LPATH). At confluence of Lincoln Avenue Overflow *4,918 *4,918 (LINC). At divergence of Cache La Poudre Right *4,923 *4,921 Flow Path (RPATH). Just upstream of Lemay Avenue ...... *4,933 *4,933 At divergence of Lemay Avenue Overflow *4,935 *4,935 (Lemayds). Just downstream of Lincoln Avenue ...... *4,950 *4,947 At divergence of Lincoln Avenue Overflow *4,952 *4,951 (LINC). Just upstream of North College Avenue .. *4,966 *4,965 Approximately 3,300 feet upstream of *4,977 *4,977 Lake Canal Diversion Dam. Cache La Poudre Low At confluence with Cache La Poudre *4,874 *4,873 Flow Channel. River. Approximately 2,600 feet upstream of *4,880 *4,877 confluence with Cache La Poudre River. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30055 #Depth in feet above City/town/ ground. *Elevation in feet. State county Source of flooding Location (NGVD) Existing Modified At divergence with Cache La Poudre *4,884 *4,885 River. Cache La Poudre Left At confluence with Cache La Poudre *4,883 *4,879 Flow Path (LPATH). River. Approximately 2,000 feet upsteam of con- *4,887 *4,883 fluence with Cache La Poudre River. Approximately 5,000 feet upstream of *4,891 *4,897 confluence with Cache La Poudre River. At divergence from Cache La Poudre *4,914 *4,913 River. Cache La Poudre Right At confluence with Cache La Poudre *4,902 *4,902 Flow Path (RPATH). River. Approximately 3,000 feet upstream of *4,913 *4,905 confluence with Cache La Poudre River. At divergence from Cache La Poudre *4,923 *4,921 River. Lincoln Avenue Overflow Just upstream of North Lemay Avenue .... *4,941 *4,940 (LINC). Just upstream of Second Street ...... *4,947 *4,948 At divergence from Cache La Poudre *4,952 *4,951 River. Lemay Avenue Overflow Approximately 900 feet downstream of *4,932 *4,932 (Lamayds). Lemay Avenue. At North Lemay Avenue ...... *4,934 *4,934 Maps are available for inspection at the Stormwater Utilities Department, City of Fort Collins, 235 Mathews, Fort Collins, Colorado. Send comments to The Honorable Ann Azari, Mayor, City of Fort Collins, P.O. Box 580, Fort Collins, Colorado 80522. Colorado ...... Larimer County Cooper Slough ...... Just upstream of State Highway 14 ...... None *4,928 (Unincorporated Areas). Shallow flooding north of State Highway None #3 14. Just upstream of Colorado & Southern None *4,943 Railroad. Just downstream of Vine Drive ...... None *4,954 State Highway 14, Over- Just upstream of Lake Canal ...... None *4,913 flow. Just downstream of State Highway 14 ..... None *4,926 Just upstream of State Highway 14 ...... None *4,628 At the intersection of Weicke Drive and None #3 John Deere Road. Sherry Drive Overflow ...... Approximately 80 feet upstream of Pros- None *4,902 pect Road. Approximately 1,600 feet upstream of None *4,904 Prospect Road. Approximately 500 feet downstream of None *4,916 Sherry Drive. Approximately 750 feet upstream of Sher- None *4,920 ry Drive. Spring Creek ...... Approximately 960 feet upstream of None *5,083 South Taft Hill Road. Approximately 2,600 feet upstream of None *5,093 South Taft Hill Road. Just downstream of West Horsetooth None *5,137 Road. Approximately 1,900 feet upstream of None *5,155 West Horsetooth Road. Cache La Poudre River At Horsetooth Road ...... *4,855 *4,855 South of Burlington Northern Railroad Em- bankment. Approximately 300 feet upstream of *4,858 *4,856 Horsetooth Road. Approximately 2,500 feet upstream of *4,866 *4,860 Horsetooth Road. Approximately 4,000 feet above con- *4,876 *4,872 fluence with Boxelder Creek. 30056 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules #Depth in feet above City/town/ ground. *Elevation in feet. State county Source of flooding Location (NGVD) Existing Modified Cache La Poudre River Approximately 300 feet upstream of *4,858 *4,856 North of Burlington Horsetooth Road. Northern Railroad Em- bankment. At confluence with Boxelder Creek ...... *4,869 *4,866 Approximately 6,000 feet upstream of *4,880 *4,876 confluence with Boxelder Creek. Cache La Poudre River .... Approximately 200 feet upstream of *4,884 *4,894 Boxelder Ditch Diversion Dam. At confluence of Lincoln Avenue Overflow *4,918 *4,918 Just upstream of Lemay Avenue ...... *4,933 *4,933 Just upstream of Shields Street ...... *4,988 *4,986 Approximately 300 feet upstream of Josh *4,993 *4,994 Ames Diversion Dam. Northeast of intersection of Taft Hill Road *5,012 *5,009 and Burlington Northern Railroad. Approximately 500 feet upstream of Taft *5,017 *5,020 Hill Road. Just upstream of Overland Trail ...... *5,059 *5,053 Just upstream of N Dam ...... None *5,078 Just upstream of State Highway 28 ...... None *5,106 Approximately 1,800 feet upstream of None *5,116 State Highway 28. Cache La Poudre Lincoln Approximately 7,900 feet upstream of *4,941 *4,940 Avenue Overflow (LINC). State Highway 14. Lemay Avenue Overflow At the intersection of Industrial Drive and *4,920 *2 (Lemayds). Lincoln Avenue. Just downstream of Airpark Road ...... *4,924 *4,925 Just upstream of Link Lane ...... *4,931 *4,930 Just upstream of Lemay Avenue ...... *4,936 *4,935 Cache La Poudre Left Just upstream of Prospect Road ...... *4,895 *4,891 Flow Path (LPATH). Approximately 5,300 feet upstream of *4,907 *4,906 Prospect Road. Approximately 6,250 feet upstream of *4,911 *4,909 Prospect Road. At confluence with Cache La Poudre *4,917 *4,918 River. Dry Creek ...... Just upstream of State Highway 14 ...... *4,920 *4,920 Maps are available for inspection at the Larimer County Courthouse, Engineering Department, 218 West Mountain Street, Fort Collins, Colo- rado. Send comments to The Honorable Janet S. Duvall, Chairperson, Larimer County Board of County Commissioners, P.O. Box 1190, Fort Collins, Colorado 80522. Louisiana ...... Calcasieu Parish Kayouche Coulee ...... At Interstate Highway 10 ...... *11 *11 (Unincorporated Areas). At Legion Street ...... *12 *12 Addison Lateral ...... Approximately 100 feet downstream of None *14 Gauthier Road. Approximately 4,300 feet upstream of None *15 Addison Lane. Airport Lateral ...... At Gauthier Road ...... None *11 Approximately 100 feet downstream of None *13 Gulf Highway. Approximately 3,000 feet upstream of None *14 Gulf Highway. Belfield Lateral ...... At confluence with Little Indian Bayou ..... None *22 At Sharon Lane ...... None *23 Black Bayou ...... Just upstream of Gauthier Road ...... None *12 At confluence with Higgins Lateral ...... None *15 At Louisiana Highway 14 ...... None *20 Greathouse Lateral ...... Approximately 100 feet downstream of None *12 Gauthier Road. Approximately 3,200 feet upstream of None *15 Gauthier Road. Higgins Lateral ...... At confluence with Black Bayou ...... None *15 Just downstream of Louisiana Highway None *18 14. Just upstream of Louisiana Highway 14 .. None *19 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30057 #Depth in feet above City/town/ ground. *Elevation in feet. State county Source of flooding Location (NGVD) Existing Modified Kinner Gully ...... Approximately 4,600 feet downstream of None *12 Mark LeBleu Road. At Claude Hebert Road ...... None *17 Approximately 7,100 feet upstream of None *19 State Highway 3059. LeBleu Canal ...... Approximately 5,350 feet downstream of None *16 River Road. At Bowman Road ...... None *18 At Parish Barn Road ...... None *19 Little Indian Bayou ...... Approximately 9,100 feet downstream of None *18 North Perkins Ferry Road. Approximately 1,800 feet upstream of None *20 North Perkins Ferry Road. At confluence with Belfield Lateral ...... None *22 McFillen Lateral ...... Approximately 100 feet downstream of None *15 Gauthier Road. Approximately 50 feet upstream of Marty None *17 Lane. Approximately 1,920 feet upstream of None *17 Marty Lane. Maps are available for inspection at the Calcasieu Parish Government Building, 1015 Pithon Street, Lake Charles, Louisiana. Send comments to The Honorable S. Mark McMurry, Calcasieu Parish Administrator, 1015 Pithon Street, Lake Charles, Louisiana 70601. Louisiana ...... Ruston (City), Lin- Chautauqua Creek ...... Just downstream of Jefferson Avenue ..... None *1,176 coln Parish. Approximately 100 feet upstream of Jef- None *1,179 ferson Avenue. Approximately 100 feet upstream of None *215 Greenwood Drive. Just upstream of south service road of None *247 Interstate Highway 20. Colvin Creek ...... At northern corporate limits located ap- *184 *183 proximately 1,130 feet downstream of Frazier Road. Approximately 50 feet upstream of *188 *188 Frazier Road. Just upstream of East Kentucky Avenue . *208 *207 Just upstream of south service road of None *259 Interstate Highway 20. Approximately 125 feet downstream of None *277 Florida Avenue. Colvin Creek Tributary ...... Approximately 300 feet upstream of con- None *199 fluence with Colvin Creek. Approximately 40 feet upstream of Cedar *205 *205 Creek Road. Approximately 1,350 feet upstream of None *214 East Kentucky Avenue. Choudrant Creek ...... At eastern corporate limits located ap- *202 *201 proximately 2,500 feet downstream of Illinois Central Gulf Railroad. Just downstream of Santiam Road ...... *218 *218 Just upstream of Oak Park Road ...... None *234 Approximately 400 feet upstream of Oak None *237 Park Road. Choudrant Creek Tributary At confluence with Choudrant Creek ...... None *209 At McDonald Avenue ...... None *219 Maps are available for inspection at the Department of Public Works, City Hall, City of Ruston, 401 North Trenton, Ruston, Louisiana. Send comments to The Honorable Hilda Taylor Perritt, Mayor, City of Ruston, P.O. Box 280, Ruston, Louisiana 71273±0280. Texas ...... Borger (City), Hill Creek ...... At corporate limits located approximately None *3,125 Hutchinson 660 feet downstream of State Highway County. 136. Approximately 40 feet upstream of State None *3,127 Highway 136. Approximately 90 feet upstream of Quail None *3,157 Hollow Street. At the western corporate limits located None *3,165 approximately 1,010 feet upstream of Quail Hollow Street. 30058 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules #Depth in feet above City/town/ ground. *Elevation in feet. State county Source of flooding Location (NGVD) Existing Modified Tributary 1 ...... At corporate limits located approximately None *3,080 1,560 feet downstream of confluence of Tributary 2. Approximately 60 feet downstream of FM None *3,118 1551. At upstream corporate limits located ap- None *3,170 proximately 2,540 feet upstream of FM 1551. Tributary 2 ...... Approximately 200 feet upstream of con- None *3,095 fluence with Tributary 1. Approximately 40 feet upstream of None *3,117 Philview Avenue. Approximately 850 feet upstream of None *3,122 Philview Avenue. Tributary 3 ...... Approximately 70 feet upstream of con- None *3,102 fluence with Tributary 1. Approximately 50 feet downstream of FM None *3,123 1551. Tributary 4 ...... Approximately 100 feet downstream of None *3,117 FM 1551. Approximately 80 feet upstream of FM None *3,120 1551. Approximately 1,770 feet upstream of FM None *3,156 1551. Maps are available for inspection at the City of Borger, Planning Department, City Hall, 600 North Main Street, Borger, Texas. Send comments to The Honorable Judy Flanders, City of Borger, 600 North Main Street, Borger, Texas 79007. (Catalog of Federal Domestic Assistance No. FEDERAL COMMUNICATIONS Accounting and Audits Division, (202) 83.100, ‘‘Flood Insurance.’’) COMMISSION 418–0809. Dated: May 31, 1995. 47 CFR Part 32 SUPPLEMENTARY INFORMATION: This is a Frank H. Thomas, synopsis of the Commission’s Notice of Deputy, Associate Director for Mitigation. [CC Docket No. 95±60; FCC 95±182] Proposed Rulemaking in CC Docket No. [FR Doc. 95–13906 Filed 6–6–95; 8:45 am] 95–60, adopted May 2, 1995 and BILLING CODE 6718±03±P Uniform System of Accounts to Raise released May 31, 1995. The complete the Expense Limit for Certain Items of text of this NPRM is available for Equipment inspection and copying during normal COMMISSION ON CIVIL RIGHTS AGENCY: Federal Communications business hours in the FCC Dockets Commission. Branch (Room 230), 1919 M Street, 45 CFR Chapter VII N.W., Washington, D.C. 20554, and may ACTION: Notice of proposed rulemaking. also be purchased from the Semiannual Agenda of Regulations SUMMARY: The Commission has adopted Commission’s copy contractor, June 2, 1995. a Notice of Proposed Rulemaking International Transcription Service, Inc. AGENCY: Commission on Civil Rights. (‘‘NPRM’’) which proposes to amend its at 2100 M Street, N.W., Suite 140, ACTION: Withdrawal of proposed agenda rules regarding Uniform System of Washington, D.C. 20037, or call (202) item. Accounts for Class A and Class B 847–3800. Telephone Companies to Raise the SUMMARY: On May 8, 1995, on page Expense Limit for Certain Items of Synopsis of Notice of Proposed 23922, item 3542, the CCR proposed to Equipment from $500 to $750. This Rulemaking issue regulations for the officers and action is taken to recognize the effects 1. This NPRM proposes to amend employees of the Commission that of inflation, the increased competitive Section 32.2000(a)(4), of Part 32, supplement the Standards of Ethical environment, and the rapid Uniform System of Accounts for Class A Conduct for Employees of the Executive technological changes that have and Class B Telephone Companies by Branch. Pending further review, the occurred since the Commission last raising the expense limit for certain CCR is now withdrawing the proposal. changed the expense limit in 1988. items of equipment from $500 to $750. FOR FURTHER INFORMATION CONTACT: DATES: Comments are to be filed on or The Commission seeks comments on Miguel A. Sapp, Acting Solicitor, U.S. before July 24, 1995; reply comments this proposal. Commission on Civil Rights, 624 Ninth are to be filed on or before August 8, 2. The Commission also seeks Street, NW., Suite 632, Washington, DC 1995. comments on whether carriers should 20425, (202) 376–8351. ADDRESSES: Federal Communications be permitted to amortize the Miguel A. Sapp, Commission, 1919 M Street, N.W., undepreciated, embedded assets Acting Solicitor. Washington, D.C. 20554. covered by such an amendment to our [FR Doc. 95–13943 Filed 6–6–95; 8:45 am] FOR FURTHER INFORMATION CONTACT: Tom rules, and if so, over what period of BILLING CODE 6335±01±M Petras, Common Carrier Bureau, time. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30059 3. The Commission also seeks 47 CFR Part 36 purchased from the commission’s comments on whether the proposed duplicating contractor, International expense limit change is an economic [CC Docket No. 80±286; FCC 95±189] Transcription Service, 2100 M Street, cost and what effect, if any, on carriers’ Establishment of a Joint Board N.W., Suite 140, Washington, DC 20037, cash flow it may have that would telephone number 202–857–3800. qualify this accounting change for AGENCY: Federal Communications Synopsis of Notice of Proposed exogenous treatment under Price Cap Commission. Rulemaking regulation. ACTION: Notice of proposed rulemaking. 4. Accordingly, it is ordered that, OB&C expenses are the costs incurred pursuant to Section 4(i), 4(j) and 220 of SUMMARY: The Federal Communications by LECs in preparing and rendering the Communications Act of 1934, as Commission proposes to change the customer bills (other than carrier access amended, 47 U.S.C. 154(i), 154(j) and separations rules applicable to local charge bills), and in accounting for 220, Notice is hereby given of the exchange carriers (‘‘LECs’’) for revenues generated by those billings. proposed amendment to Part 32 of the allocating the Other Billing and LECs allocate most of the interstate Commission’s rules, 47 CFR part 32, as Collecting (‘‘OB&C’’) expenses 1 portion OB&C costs to nonregulated activities described below. In conjunction with of Account 32.6623, Customer services,2 and recover these costs through this notice, we delegate authority to the between state and interstate untariffed charges for non-regulated Chief, Common Carrier Bureau to jurisdictions. These permanent services. The sole exception is the request and obtain from the Regional separations rules would replace the billing and collecting cost for the federal Bell Operating Companies and GTE any interim procedures that LECs currently end user common line charge which data necessary to evaluate the possible use to allocate OB&C costs. The FCC LECs recover through the common line revenue requirement impact of the proposes a fixed allocation method access rate element. proposed change. which would allocate a specified Prior to 1987, the FCC rules had complex and administratively- List of Subjects in 47 CFR Part 32 percentage of costs to the interstate jurisdiction. The FCC invited comment burdensome rules in place. In 1987 the Uniform System of Accounts. on four fixed allocation methodologies FCC replaced those rules with a new approach which it expected to simplify Federal Communications Commission. and it asked parties to suggest the separation of OB&C expenses.3 The LaVera F. Marshall, alternative approaches. The FCC also new rules, however, applied a formula Acting Secretary. invited comment on the need for a that inadvertently set the intestate share contingency provision that would be Rule Changes of OB&C expenses at thirty-three triggered by one or more of the percent for LECs that continued to Part 32 of Title 47 of the CFR is interexchange carriers substantially provide billing and collecting functions proposed to be amended as follows: reducing their use of LEC billing and for AT&T. The interstate allocations had collection services. The FCC referred the PART 32ÐUNIFORM SYSTEM OF typically amounted to approximately issues involving the OB&C separations ACCOUNTS FOR twenty percent. This unanticipated rules to the Federal State Joint Board TELECOMMUNICATIONS COMPANIES result led the Commission, in 1988, on established in the CC Docket 80–286 reconsideration to reinstate on an Joint Board proceeding for a 1. The authority citation for part 32 interim basis a portion of the allocation recommendation. continues to read as follows: rules that were in effect prior to 1987.4 Authority: secs. 4(i), 4(j) and 220 as DATES: Comments are due July 14, 1995; The FCC believes that LECs generally amended; 47 U.S.C. 154(i), 154(j) and 220 Reply Comments are due August 14, cannot attribute OB&C services to any unless otherwise noted. 1995. specific service and, therefore, it 2. Paragraph 32.2000(a)(4) is revised ADDRESSES: FCC, 1919 M St., N.W., proposes a fixed allocation factor to to read as follows: Washington, DC 20554. replace the interim OB&C allocation FOR FURTHER INFORMATION CONTACT: procedures. The FCC also believes that § 32.2000 Instructions for a fixed allocation factor would provide telecommunications plant accounts. Deborah Dupont, telephone number 202–418–0850. greater administrative simplicity, (a) * * * certainty and auditability than the (4) The cost of individual items of SUPPLEMENTARY INFORMATION: This is a interim rules. The FCC proposed four equipment, classifiable to Accounts summary of the FCC’s Notice of alternative fixed allocation methods and 2112, Motor Vehicles; 2113, Aircraft; Proposed Rulemaking in Amendment of invited parties to propose other possible 2114, Special Purpose Vehicles; 2115, Part 36 of the Commission Rules and methods as well. The FCC requests that Garage Work Equipment; 2116, Other Establishment of a Joint Board, FCC 95– parties comment on (1) whether the Work Equipment; 2122, Furniture; 2123, 189, CC Docket No. 80–286, adopted allocation procedures should be based Office Equipment; and 2124, General May 4, 1995 and released May 15, 1995. upon a fixed allocation factor, rather Purpose Computers, costing $750 or less The Commission has made the full text than on a direct measurement of actual or having a useful life less than one year of the Notice of Proposed Rulemaking interstate usage, and (2) whether the shall be charged to the applicable Plant available for inspection and copying Specific Operating Expense accounts. If during normal business hours in the 3 MTS and WATS Market Structure, Amendment the aggregate investment in the items is Commission’s Reference Center, Room of Part 67 of the Commission’s Rules and relatively large at the time of 239, 1919 M Street, N.W., Washington, Establishment of a Joint Board, CC Docket Nos. 78– acquisition, such amounts shall be DC 20554, and will publish it in the 72 and 80–286, 2 FCC Rcd 2078, 2083 (1987), 52 maintained in an applicable material FCC Record. The full text of the Notice FR 18408, May 15, 1987; Amendment of Part 67 (New Part 36) of the Commission’s Rules and and supplies account until items are of Proposed Rulemaking may also be Establishment of a Federal-State Joint Board, 2 FCC used. Rcd 2639 (1987), 52 FR 17228, May 6, 1987. * * * * * 1 The phrase ‘‘OB&C expenses’’ refers to the Other 4 Amendment of Part 67 (New Part 36) of the Billing and Collecting Expenses described in 47 Commission’s Rules and Establishment of a [FR Doc. 95–13876 Filed 6–6–95; 8:45 am] CFR 36.380 (1994). Federal-State Joint Board, 3 FCC Rcd 5518 (1988), BILLING CODE 6712±01±M 2 See 47 CFR 32.6623. 53 FR 33010, August 29, 1988. 30060 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules allocation factor should be adjusted to recommendation for a permanent Act of 1934, as amended, 47 U.S.C. reflect substantial changes in the solution. It requests that interested 410(c), that the issues relating to interexchange carriers usage of LEC parties address the extent to which the permanent changes in the Commission’s billing services. proposed procedures: (1) Would reflect Part 36 Revenue Accounting Expense The FCC also seeks comments on cost-causation principles; (2) would rules, 47 CFR 36.380, shall be and whether its permanent OB&C allocation affect the division of costs between the hereby are referred to the Federal State rules should include a contingency jurisdictions; and (3) would prove Joint Board established in the CC Docket provision that would alter separations burdensome to implement and No. 80–286 proceeding for a procedures if interexchange carriers administer. recommended decision regarding the substantially reduce their use of LEC Accordingly, it is ordered that, issues raised herein. billing and collecting services, and if so, pursuant to sections 1, 4(i), 4(j), 403, what form this ‘‘trigger’’ provision and 410(c) of the Communications Act List of Subjects in 47 CFR Part 36 should take. The FCC proposes two of 1934, as amended, 47 U.S.C. 151, possible adjustment triggers and invites 154(i), 154(j), 403, and 410(c), NOTICE Uniform System of Accounts. comments on its proposals and related IS HEREBY GIVEN of proposed Federal Communications Commission. issues as well as suggestions for permanent amendments to Part 36, LaVera F. Marshall, alternative approaches. Subpart D of the Commission’s Rules, Finally, the FCC invites comments on 47 CFR part 36, subpart D, as described Acting Secretary. the separations procedures applicable to in the Notice of Proposed Rulemaking. [FR Doc. 95–13849 Filed 6–6–95; 8:45 am] OB&C expenses and refers this issue to It is further ordered, pursuant to BILLING CODE 6712±01±M the Docket 80–286 Joint Board for a Section 410(c) of the Communications 30061 Notices Federal Register Vol. 60, No. 109 Wednesday, June 7, 1995 This section of the FEDERAL REGISTER Dr. Ved Malik, Biotechnologist, (ECB). ECB is a major corn pest that contains documents other than rules or Biotechnology Permits, BBEP, APHIS, reduces yield by disrupting normal proposed rules that are applicable to the Suite 5B05, 4700 River Road Unit 147, plant physiology and causing damage to public. Notices of hearings and investigations, Riverdale, MD 20737–1237; (301) 734– the leaves, stalks, and ears. Results of committee meetings, agency decisions and 7612. To obtain a copy of the petition, field tests conducted by Monsanto rulings, delegations of authority, filing of petitions and applications and agency contact Ms. Kay Peterson at (301) 734– under permits and notifications granted statements of organization and functions are 7601. by APHIS and under an experimental examples of documents appearing in this SUPPLEMENTARY INFORMATION: The use permit obtained from the section. regulations in 7 CFR part 340, Environmental Protection Agency (EPA) ‘‘Introduction of Organisms and indicate that corn plants producing the Products Altered or Produced Through CryIA(b) protein were protected DEPARTMENT OF AGRICULTURE Genetic Engineering Which Are Plant throughout the growing season from leaf Pests or Which There Is Reason to and stalk feeding damage caused by Animal and Plant Health Inspection Believe Are Plant Pests,’’ regulate, ECB. In addition to expressing the Service among other things, the introduction CryIA(b) protein, the plants also express [Docket No. 95±041±1] (importation, interstate movement, or the selectable marker enzyme 5- release into the environment) of enolpyruvylshikimate-3-phosphate Receipt of Petition for Determination of organisms and products altered or synthase (CP4 EPSPS). The cryIA(b) Nonregulated Status for Genetically produced through genetic engineering gene and the CP4 EPSPS marker gene Engineered Corn that are plant pests or that there is were introduced into the subject corn reason to believe are plant pests. Such line by a particle acceleration method AGENCY: Animal and Plant Health genetically engineered organisms and and their expression is under the Inspection Service, USDA. products are considered ‘‘regulated control of the enhanced 35S promoter ACTION: Notice. articles.’’ derived from the plant pathogen cauliflower mosaic virus. SUMMARY: We are advising the public The regulations in § 340.6(a) provide Monsanto’s MON 80100 corn line is that the Animal and Plant Health that any person may submit a petition currently considered a regulated article Inspection Service has received a to the Animal and Plant Health under the regulations in 7 CFR part 340 petition from the Monsanto Company Inspection Service (APHIS) seeking a because it contains gene sequences seeking a determination of nonregulated determination that an article should not derived from plant pathogenic sources. status for a corn line designated as MON be regulated under 7 CFR part 340. The subject corn line was evaluated in 80100 that has been genetically Paragraphs (b) and (c) of § 340.6 field trials conducted under APHIS engineered for insect resistance. The describe the form that a petition for permits or notifications from 1992 petition has been submitted in determination of nonregulated status through 1994. In the process of accordance with our regulations must take and the information that must reviewing the applications for field concerning the introduction of certain be included in the petition. trials of the subject corn, APHIS genetically engineered organisms and On April 3, 1995, APHIS received a determined that the vectors and other products. In accordance with those petition (APHIS Petition No. 95–093– elements were disarmed and that the regulations, we are soliciting public 01p) from the Monsanto Company trials, which were conducted under comments on whether this corn line (Monsanto) of St. Louis, MO, requesting conditions of reproductive and physical presents a plant pest risk. a determination of nonregulated status under 7 CFR part 340 for an insect- containment or isolation, would not DATES: Written comments must be resistant corn line designated as MON present a risk of plant pest introduction received on or before August 7, 1995. 80100. The Monsanto petition states or dissemination. ADDRESSES: Please send an original and that the subject corn line should not be In the Federal Plant Pest Act, as three copies of your comments to regulated by APHIS because it does not amended (7 U.S.C. 150aa et seq.), ‘‘plant Docket No. 95–041–1, Regulatory present a plant pest risk. pest’’ is defined as ‘‘any living stage of: Analysis and Development, PPD, As described in the petition, corn line Any insects, mites, nematodes, slugs, APHIS, Suite 3C03, 4700 River Road MON 80100 has been genetically snails, protozoa, or other invertebrate Unit 118, Riverdale, MD 20737–1237. engineered with the cryIA(b) gene that animals, bacteria, fungi, other parasitic Please state that your comments refer to encodes for a CryIA(b) insect control plants or reproductive parts thereof, Docket No. 95–041–1. A copy of the protein derived from the common soil viruses, or any organisms similar to or petition and any comments received bacterium Bacillus thuringiensis subsp. allied with any of the foregoing, or any may be inspected at USDA, room 1141, kurstaki (Btk). This protein is a member infectious substances, which can South Building, 14th Street and of a class of insecticidal proteins, also directly or indirectly injure or cause Independence Avenue SW., known as delta-endotoxins, that are disease or damage in any plants or parts Washington, DC, between 8 a.m. and produced as parasporal crystals by B. thereof, or any processed, manufactured 4:30 p.m., Monday through Friday, thuringiensis in nature, and are known or other products of plants.’’ APHIS except holidays. Persons wishing access to be quite selective in their toxicity to views this definition very broadly. The to that room to inspect the petition or specific organisms, while nontoxic to all definition covers direct or indirect comments are asked to call in advance other organisms. Btk proteins are injury, disease, or damage not just to of visiting at (202) 690–2817. effective against certain lepidopteran agricultural crops, but also to plants in FOR FURTHER INFORMATION CONTACT: insects, including European corn borer general, for example, native species, as 30062 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices well as to organisms that may be public review, and copies of the petition be determined and announced beneficial to plants, for example, may be ordered (see the ADDRESSES immediately if, for any consecutive 10- honeybees, rhizobia, etc. section of this notice). week period, the Friday through This genetically engineered corn line After the comment period closes, Thursday average price quotation for the is also currently subject to regulation by APHIS will review the data submitted lowest-priced U.S. growth, as quoted for other agencies. The EPA is responsible by the petitioner, all written comments Middling 13⁄32 inch cotton, C.I.F. for the regulation of pesticides under received during the comment period, northern Europe, (U.S. Northern Europe the Federal Insecticide, Fungicide, and and any other relevant information. price), adjusted for the value of any Rodenticide Act (FIFRA), as amended (7 Based on the available information, cotton user marketing certificates U.S.C. 136 et seq.). FIFRA requires that APHIS will furnish a response to the issued, exceeds the Northern Europe all pesticides, including insecticides, be petitioner, either approving the petition price by more than 1.25 cents per registered prior to distribution or sale, in whole or in part, or denying the pound. This condition was met during unless exempted by EPA regulation. petition. APHIS will then publish a the consecutive 10-week period that Accordingly, Monsanto has submitted to notice in the Federal Register ended April 6, 1995. The quota amount the EPA an application to register the announcing the regulatory status of is equal to 1 week’s consumption of transgenic plant pesticide Btk CryIA(b) Monsanto’s MON 80100 corn line and upland cotton by domestic mills at the insect control protein as produced in the availability of APHIS’ written seasonally-adjusted average rate of the corn. decision. most recent 3 months for which data are Under the Federal Food, Drug, and Authority: 7 U.S.C. 150aa–150jj, 151–167, available—December 1994 through Cosmetic Act (FFDCA) (21 U.S.C. 301 et and 1622n; 31 U.S.C. 9701; 7 CFR 2.17, 2.51, February 1995. The special import quota seq.), pesticides added to raw and 371.2(c). identifies quantity of imports that is not agricultural commodities generally are Done in Washington, DC, this 1st day of subject to the over-quota tariff rate of a considered to be unsafe unless a June 1995. tariff-rate quota. The quota is not tolerance or exemption from tolerance Lonnie J. King, divided by staple length or by country has been established. Foods containing Acting Administrator, Animal and Plant of origin. The quota does not affect unsafe pesticides are deemed to be Health Inspection Service. existing tariff rates or phytosanitary adulterated. Residue tolerances for [FR Doc. 95–13919 Filed 6–6–95; 8:45 am] regulations. The quota does not apply to pesticides are established by the EPA BILLING CODE 3410±34±M Extra Long Staple cotton. under the FFDCA; the Food and Drug Administration (FDA) enforces the Authority: 7 U.S.C. 1444–2(a) and U.S. Note 6(a), Subchapter III, Chapter 99 of the tolerances set by the EPA. Monsanto has Commodity Credit Corporation also submitted to the EPA a pesticide HTS. petition (PP 5F4473) proposing to Secretary of Agriculture's Special Signed at Washington, DC, on May 25, 1995. amend 40 CFR part 180 to establish a Cotton Quota Announcement Number tolerance exemption for residues of the 1 Dan Glickman, plant pesticide active ingredient B. Secretary. thuringiensis delta-endotoxin as AGENCY: Commodity Credit Corporation, [FR Doc. 95–13914 Filed 6–6–95; 8:45 am] produced in corn by a cryIA(b) gene and USDA. BILLING CODE 3410±05±M its controlling sequences. ACTION: Notice. Consistent with the ‘‘Coordinated SUMMARY: Special import quota for Framework for Regulation of Secretary of Agriculture's Special upland cotton equal to 46,757,469 Biotechnology’’ (51 FR 23302–23350, Cotton Quota Announcement Number June 26, 1986), APHIS and the EPA are kilograms (103,082,657 pounds) is 2 coordinating their review of this established in accordance with section genetically engineered corn line to 103B(a)(5)(F) of the Agricultural Act of AGENCY: Commodity Credit Corporation, avoid duplication and ensure that all 1949, as amended (1949 Act). This USDA. relevant issues are addressed. quota is established under Proclamation ACTION: Notice. The FDA published a statement of 6301 of June 7, 1991, and is referenced policy on foods derived from new plant as the Secretary of Agriculture’s Special SUMMARY: A special import quota for varieties in the Federal Register on May Cotton Quota Announcement Number 1, upland cotton equal to 46,757,469 29, 1992 (57 FR 22984–23005). The FDA chapter 99, subchapter III, subheading kilograms (103,082,657 pounds) is statement of policy includes a 9903.52.01 of the Harmonized Tariff established in accordance with section discussion of the FDA authority for Schedule (HTS). 103B(a)(5)(F) of the Agricultural Act of ensuring food safety under the FFDCA, DATES: The quota was established on 1949, as amended (1949 Act). This and provides guidance to industry on April 12, 1995, and applies to upland quota is established under Proclamation the scientific considerations associated cotton purchased not later than July 10, 6301 of June 7, 1991, and is referenced with the development of foods derived 1995 (90 days from the date the quota as the Secretary of Agriculture’s Special from new plant varieties, including was established) and entered into the Cotton Quota Announcement Number 2, those plants developed through the United States not later than October 8, chapter 99, subchapter III, subheading techniques of genetic engineering. 1995 (180 days from the date the quota 9903.52.02 of the Harmonized Tariff In accordance with § 340.6(d) of the was established). Schedule (HTS). regulations, we are publishing this FOR FURTHER INFORMATION CONTACT: DATES: The quota was established on notice to inform the public that APHIS Janise Zygmont, Consolidated Farm April 19, 1995, and applies to upland will accept written comments regarding Service Agency, United States cotton purchased not later than July 17, the Petition for Determination of Department of Agriculture, room 3756– 1995 (90 days from the date the quota Nonregulated Status from any interested S, PO Box 2415, Washington, DC was established) and entered into the person for a period of 60 days from the 20013–2415 or call (202) 720–8841. United States not later than October 15, date of this notice. The petition and any SUPPLEMENTARY INFORMATION: The 1949 1995 (180 days from the date the quota comments received are available for Act requires that a special import quota was established). Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30063 FOR FURTHER INFORMATION CONTACT: DATES: The quota was established on quota is established under Proclamation Janise Zygmont, Consolidated Farm April 26, 1995, and applies to upland 6301 of June 7, 1991, and is referenced Service Agency, United States cotton purchased not later than July 24, as the Secretary of Agriculture’s Special Department of Agriculture, room 3756– 1995 (90 days from the date the quota Cotton Quota Announcement Number 4, S, PO Box 2415, Washington, DC was established) and entered into the chapter 99, subchapter III, subheading 20013–2415 or call (202) 720–8841. United States not later than October 22, 9903.52.04 of the Harmonized Tariff 1995 (180 days from the date the quota Schedule (HTS). SUPPLEMENTARY INFORMATION: The 1949 was established). Act requires that a special import quota DATES: The quota was established on be determined and announced FOR FURTHER INFORMATION CONTACT: May 3, 1995, and applies to upland immediately if, for any consecutive 10- Janise Zygmont, Consolidated Farm cotton purchased not later than July 31, week period, the Friday through Service Agency, United States 1995 (90 days from the date the quota Thursday average price quotation for the Department of Agriculture, room 3756– was established) and entered into the lowest-priced U.S. growth, as quoted for S, PO Box 2415, Washington, DC United States not later than October 29, 1995 (180 days from the date the quota Middling 13⁄32 inch cotton, C.I.F. 20013–2415 or call (202) 720–8841. northern Europe, (U.S. Northern Europe SUPPLEMENTARY INFORMATION: The 1949 was established). price), adjusted for the value of any Act requires that a special import quota FOR FURTHER INFORMATION CONTACT: cotton user marketing certificates be determined and announced Janise Zygmont, Consolidated Farm issued, exceeds the Northern Europe immediately if, for any consecutive 10- Service Agency, United States price by more than 1.25 cents per week period, the Friday through Department of Agriculture, room 3756– pound. This condition was met during Thursday average price quotation for the S, PO Box 2415, Washington, DC the consecutive 10-week period that lowest-priced U.S. growth, as quoted for 20013–2415 or call (202) 720–8841. ended April 13, 1995. The quota amount Middling 1-3/32 inch cotton, C.I.F. SUPPLEMENTARY INFORMATION: The 1949 is equal to 1 week’s consumption of northern Europe, (U.S. Northern Europe Act requires that a special import quota upland cotton by domestic mills at the price), adjusted for the value of any be determined and announced seasonally-adjusted average rate of the cotton user marketing certificates immediately if, for any consecutive 10- most recent 3 months for which data are issued, exceeds the Northern Europe week period, the Friday through available—December 1994 through price by more than 1.25 cents per Thursday average price quotation for the February 1995. The special import quota pound. This condition was met during lowest-priced U.S. growth, as quoted for identifies a quantity of imports that is the consecutive 10-week period that Middling 13⁄32 inch cotton, C.I.F. not subject to the over-quota tariff rate ended April 20, 1995. The quota amount northern Europe, (U.S. Northern Europe of a tariff-rate quota. The quota is not is equal to 1 week’s consumption of price), adjusted for the value of any divided by staple length or by country upland cotton by domestic mills at the cotton user marketing certificates of origin. The quota does not affect seasonally-adjusted average rate of the issued, exceeds the Northern Europe existing tariff rates or phytosanitary most recent 3 months for which data are price by more than 1.25 cents per regulations. The quota does not apply to available—December 1994 through pound. This condition was met during Extra Long Staple cotton. February 1995. The special import quota the consecutive 10-week period that ended April 27, 1995. The quota amount Authority: 7 U.S.C. 1444–2(a) and U.S. identifies a quantity of imports that is Note 6(a), Subchapter III, Chapter 99 of HTS. not subject to the over-quota tariff rate is equal to 1 week’s consumption of upland cotton by domestic mills at the Signed at Washington, DC, on May 25, of tariff-rate quota. The quota is not 1995. divided by staple length or by country seasonally-adjusted average rate of the most recent 3 months for which data are Dan Glickman, of origin. The quota does not affect existing tariff rates or phytosanitary available—January 1995 through March Secretary. regulations. The quota does not apply to 1995. The special import quota [FR Doc. 95–13915 Filed 6–6–95; 8:45 am] Extra Long Staple cotton. identifies a quantity of imports that is BILLING CODE 3410±05±M Authority: 7 U.S.C. 1444–2(a) and U.S. not subject to the over-quota tariff rate Note 6(a), Subchapter III, Chapter 99 of the of a tariff-rate quota. The quota is not divided by staple length or by country Secretary of Agriculture's Special HTS. of origin. The quota does not affect Cotton Quota Announcement Number Signed at Washington, DC on May 25, existing tariff rates or phytosanitary 3 1995. Dan Glickman, regulations. The quota does not apply to Extra Long Staple cotton. AGENCY: Commodity Credit Corporation, Secretary. USDA. [FR Doc. 95–13916 Filed 6–6–95; 8:45 am] Authority: 7 U.S.C. 1444–2 (a) and U.S. BILLING CODE 3410±05±M Note 6(a), Subchapter III, Chapter 99 of the ACTION: Notice. HTS. Signed at Washington, DC on May 25, SUMMARY: A special import quota for Secretary of Agriculture's Special 1995. upland cotton equal to 46,757,469 Cotton Quota Announcement Number Dan Glickman, kilograms (103,082,657 pounds) is 4 Secretary. established in accordance with section [FR Doc. 95–13917 Filed 6–6–95; 8:45 am] 103B(a)(5)(F) of the Agricultural Act of AGENCY: Commodity Credit Corporation. BILLING CODE 3410±05±M 1949, as amended (1949 Act). This ACTION: Notice. quota is established under Proclamation SUMMARY: 6301 of June 7, 1991, and is referenced A special import quota for Secretary of Agriculture's Special as the Secretary of Agriculture’s Special upland cotton equal to 48,036,600 Cotton Quota Announcement Number Cotton Quota Announcement Number 3, kilograms (105,902,662 pounds) is 5 chapter 99, subchapter III, subheading established in accordance with section 9903.52.03 of the Harmonized Tariff 103B(a)(5)(F) of the Agriculture Act of AGENCY: Commodity Credit Corporation, Schedule (HTS). 1949, as amended (1949 Act). This USDA. 30064 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices ACTION: Notice. ARCHITECTURAL AND model codes, and continue to meet the TRANSPORTATION BARRIERS needs of individuals with disabilities. SUMMARY: A special import quota for COMPLIANCE BOARD The Advisory Committee is composed upland cotton equal to 48,036,600 of organizations representing kilograms (105,902,662 pounds) is ADAAG Review Advisory Committee; individuals with disabilities, model established in accordance with section Meetings code organizations, professional 103B(a)(5)(F) of the Agricultural Act of associations, State and local AGENCY: Architectural and 1949, as amended (1949 Act). This governments, building owners and quota is established under Proclamation Transportation Barriers Compliance operators, and other organizations. The 6301 of June 7, 1991, and is referenced Board. Advisory Committee has formed the as the Secretary of Agriculture’s Special ACTION: Notice of meetings. following subcommittees to assist in its Cotton Quota Announcement Number 5, work: Editorial, Accessible Routes, chapter 99, subchapter III, subheading SUMMARY: The Architectural and Transportation Barriers Compliance Plumbing, Communications, and 9903.52.05 of the Harmonized Tariff Special Occupancies. The Schedule (HTS). Board (Access Board) gives notice of the dates and locations of subcommittee subcommittees will present their DATES: The quota was established on recommendations to the full advisory May 10, 1995, and applies to upland meetings of the ADAAG Review Advisory Committee. committee in November 1995. The full cotton purchased not later than August advisory committee will review the 7, 1995 (90 days from the date the quota DATES: The subcommittees of the subcommittee recommendations and was established) and entered into the ADAAG Review Advisory Committee present final recommendations to the United States not later than November will meet as follows: Access Board by April 1996. 5, 1995 (180 days from the date the Accessible Routes Subcommittee, June The Accessible Routes Subcommittee, quota was established). 19 and 20, 1995. Plumbing Subcommittee, and Special FOR FURTHER INFORMATION CONTACT: Plumbing Subcommittee, June 27 and Occupancies Subcommittee will meet in Janise Zygmont, Consolidated Farm 28, 1995. June and July 1995 on the specific dates Service Agency, United States Special Occupancies Subcommittee, and at the locations announced in this Department of Agriculture, room 3756– July 6 and 7, 1995. notice. The meetings are open to the S, PO Box 2415, Washington, DC ADDRESSES: The Accessible Routes public. The meeting sites are accessible 20013–2415 or call (202) 720–8841. Subcommittee and the Plumbing to individuals with disabilities. SUPPLEMENTARY INFORMATION: The 1949 Subcommittee meetings will be held at Individuals with hearing impairments Act requires that a special import quota the offices of the President’s Committee who require sign language interpreters be determined and announced on Employment of People with should contact Marsha Mazz at least immediately if, for any consecutive 10- Disabilities, 1331 F Street, NW., three full business days prior to the week period, the Friday through Washington, DC in the training room on meeting date by calling (202) 272–5434 Thursday average price quotation for the the third floor of the building. The ext 21 (voice) or (202) 272–5434 ext 21 lowest-priced U.S. growth, as quoted for Special Occupancies Subcommittee (TTY). Middling 1-3⁄32 inch cotton, C.I.F. meetings will be held at the offices of Lawrence W. Roffee, northern Europe (U.S. Northern Europe the Paralyzed Veterans of America, 801 Executive Director. price), adjusted for the value of any 18th Street NW., Washington, DC in the [FR Doc. 95–13944 Filed 6–6–95; 8:45 am] cotton user marketing certificates conference room on the second floor of BILLING CODE 8150±01±M issued, exceeds the Northern Europe the building. price by more than 1.25 cents per FOR FURTHER INFORMATION CONTACT: pound. This condition was met during For further information regarding the DEPARTMENT OF COMMERCE the consecutive 10-week period that meetings, please contact Marsha Mazz, ended May 4, 1995. The quota amount Office of Technical and Information International Trade Administration, is equal to 1 week’s consumption of Services, Architectural and Commerce upland cotton by domestic mills at the Transportation Barriers Compliance seasonally-adjusted average rate of the Board, 1331 F Street NW., suite 1000, Export Trade Certificate of Review most recent 3 months for which data are Washington, DC 20004–1111. ACTION: Notice of Application. available—January 1995 through March Telephone (202) 272–5434 ext. 21 1995. The special import quota (voice); (202) 272–5449 ext. 21 (TTY). SUMMARY: The Office of Export Trading identifies a quality of imports that is not This document is available in alternate Company Affairs, International Trade subject to the over-quota tariff rate of a formats (cassette tape, braille, large Administration, Department of tariff-rate quota. The quota is not print, or computer disk) upon request. Commerce, has received an application divided by staple length or by country SUPPLEMENTARY INFORMATION: In for an Export Trade Certificate of of origin. The quota does not affect September 1994, the Access Board Review. This notice summarizes the existing tariff rates or phytosanitary established an advisory committee to application and requests comments regulations. The quota does not apply to review the Americans with Disabilities relevant to whether the Certificate Extra Long Staple cotton. Act Accessibility Guidelines (ADAAG) should be issued. Authority: 7 U.S.C. 1444–2(a) and U.S. for buildings and facilities. 36 CFR part FOR FURTHER INFORMATION CONTACT: W. Note 6(a), Subchapter III, Chapter 99 of the 1191, appendix A. The Advisory Dawn Busby, Director, Office of Export HTS. Committee will make recommendations Trading Company Affairs, International Signed at Washington, DC on May 25, to the Access Board for updating Trade Administration, 202-482-5131. 1995. ADAAG to ensure that the guidelines This is not a toll-free number. Dan Glickman, remain a state-of-the-are document SUPPLEMENTARY INFORMATION: Title III of Secretary. which is generally consistent with the Export Trading Company Act of [FR Doc. 95–13918 Filed 6–6–95; 8:45 am] technological developments and 1982 (15 U.S.C. 4001–21) authorizes the BILLING CODE 3410±05±M changes in national standards and Secretary of Commerce to issue Export Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30065 Trade Certificates of Review. A research and analysis, feasibility 10. Exchange information on a one-to- Certificate of Review protects the holder analysis, customer and supplier one basis with individual Suppliers and the members identified in the location, government relations and regarding inventories and near-term Certificate from state and federal assistance with state and federal production schedules for the purpose government antitrust actions and from programs, foreign trade and of determining the availability of private, treble damage antitrust actions business protocol, consulting, Products for export and coordinating for the export conduct specified in the collection of information on trade exports with distributors. Certificate and carried out in opportunities, marketing, Definitions compliance with its terms and negotiations, joint ventures, conditions. Section 302(b)(1) of the Act shipping, export licensing, For the purposes of this certificate and 15 CFR 325.6(a) require the advertising, documentation and application, the following term is Secretary to publish a notice in the services related to compliance with defined: Federal Register identifying the customs requirements, insurance 1. ‘‘Supplier’’ means a person who applicant and summarizing its proposed and financing, trade show produces, provides, licenses, or sells export conduct. exhibitions, organizational a Product, Service, or Technology development, business management Right. Request for Public Comments and labor strategies, technology Dated: June 1, 1995. Interested parties may submit written transfer, transportation, and W. Dawn Busby, comments relevant to the determination facilitating the formation of whether a Certificate should be issued. Director, Office of Export Trading Company shippers associations. Affairs. An original and five (5) copies should be submitted no later than 20 days after Export Markets [FR Doc. 95–13865 Filed 6–6–95; 8:45 am] the date of this notice to: Office of The Export Markets include all parts BILLING CODE 3510±25±P Export Trading Company Affairs, of the world except the United States International Trade Administration, (the fifty states of the United States, the National Oceanic and Atmospheric Department of Commerce, Room 1800H, District of Columbia, the Administration Washington, D.C. 20230. Information Commonwealth of Puerto Rico, the submitted by any person is exempt from Virgin Islands, American Samoa, Guam, [I.D. 050895E] disclosure under the Freedom of the Commonwealth of the Northern Information Act (5 U.S.C. 552). Mariana Islands, and the Trust Territory Marine Mammals and Endangered Comments should refer to this of the Pacific Islands). Species; Permits application as ‘‘Export Trade Certificate Export Trade Activities and Methods of AGENCY: National Marine Fisheries of Review, application number 95– Operation Service (NMFS), National Oceanic and 00004.’’ A summary of the application Atmospheric Administration (NOAA), follows. With respect to the sale of Products and Services, Licensing and Technology Commerce. Summary of the Application Rights and provisions of Export Trade ACTION: Issuance of scientific research Applicant: United Products of America, Facilitation Services, UPA, Inc. may: permit no. 957 (P771 #71). Inc. (‘‘UPA, Inc.’’), P.O. Box 3264, 1. Provide and/or arrange for the SUMMARY: Notice is hereby given that Dr. Fredericksburg, Virginia 22402 provision of Export Trade Facilitation Howard Braham, National Marine Contact: Kindra Rokhsaz, Telephone: Services; Mammal Laboratory, Alaska Fisheries (703) 891-2645 2. Engage in promotional and marketing Science Center, National Marine Application No.: 95–00004 activities and collect information on Fisheries Service, 7600 Sand Pt. Way Date Deemed Submitted: April 30, 1995, trade opportunities in the Export NE, Bin C15700, Seattle, WA 98115– United Products of America, Markets and distribute such 0070, has been issued a permit to Incorporated, (‘‘UPA, Inc.’’) seeks a information to clients; satellite tag 50 beluga whales Certificate to cover the following 3. Enter into exclusive and/or non- (Delphinapterus leucas) for purposes of specific Export Trade, Export Markets, exclusive licensing and/or sales scientific research. and Export Trade Activities and agreements with Suppliers for the ADDRESSES: The permit and related Methods of Operations. export of Products, Services, and/or documents are available for review Technology Rights in Export Markets; Export Trade 4. Enter into exclusive and/or non- upon written request or by appointment, 1. Products exclusive agreements with in the following offices: All products distributors and/or sales Permits Division, Office of Protected 2. Services representatives in Export Markets; Resources, NMFS, 1315 East-West All Services 5. Allocate export sales or divide Export Highway, Room 13130, Silver Spring, 3. Technology Rights Markets among Suppliers for the sale MD 20910 (301/713–2289); and Technology rights, including, but not and/or licensing of Products, Services Alaska Region, NMFS, P.O. Box limited to, patents, trademarks, and/or Technology Rights; 21668, Juneau, AK 99802–1668 (907/ copyrights, and trade secrets, that 6. Allocate export orders among 586–7221). relate to Products and Services. Suppliers; SUPPLEMENTARY INFORMATION: On April 4. Export Trade Facilitation Services (as 7. Establish the price for Products, 11, 1995, notice was published in the they relate to the Export of Services, and/or Technology Rights Federal Register (60 FR 18395) that a Products, Services and Technology for sale and/or licensing in Export request for a scientific research permit Rights) Markets. to satellite tag beluga whales had been Export Trade Facilitation Services 8. Negotiate, enter into, and/or manage submitted by the above-named include professional services in the licensing agreements for the export of individual. The requested permit has areas of export management, Technology Rights; been issued under the authority of the procurement management, market 9. Enter into contracts for shipping; Marine Mammal Protection Act of 1972, 30066 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices as amended (16 U.S.C. 1361 et seq.), and incidental, but not intentional taking of Deep seismic surveys obtain data the Regulations Governing the Taking marine mammals by U.S. citizens who about formations several thousands of and Importing of Marine Mammals (50 engage in a specified activity (other than meters deep, such as the hydrocarbon- CFR part 216). commercial fishing) within a specified bearing Monterery Formation in the Dated: May 31, 1995. geographical region if certain findings SYU. These surveys are accomplished by transmitting sound waves into the Ann D. Terbush, are made and regulations are issued. Permission may be granted if NMFS earth, which are reflected off subsurface Chief, Permits and Documentation Division, formations and recorded with detectors Office of Protected Resources, National finds that the taking will have a Marine Fisheries Service. negligible impact on the species or in the water column. A typical marine seismic source is an airgun array that [FR Doc. 95–13859 Filed 6–6–95; 8:45 am] stock(s); will not have an unmitigable releases compressed air into the water, BILLING CODE 3510±22±F adverse impact on the availability of the species or stock(s) for subsistence uses; creating an acoustical energy pulse that and the permissible methods of taking is directed into the earth. Hydrophones [I.D. 053095D] and requirements pertaining to the spaced along a streamer cable just below monitoring and reporting of such taking the surface of the water receive the Small Takes of Marine Mammals are set forth. reflected energy from the subsurface Incidental to Specified Activities; On April 30, 1994, the President formations and transmit data to the Offshore Seismic Activities in signed Public Law 103–238, The Marine seismic vessel. On board the vessel, the Southern California Mammal Protection Act Amendments of signals are amplified, digitized, and 1994. One part of this law added a new recorded on magnetic tape. AGENCY: National Marine Fisheries The contract survey vessel will subsection 101(a)(5)(D) to the MMPA to Service (NMFS), National Oceanic and transverse the SYU area along east-west establish an expedited process by which Atmospheric Administration (NOAA), lines, approximately 24.9 km in length citizens of the United States can apply Commerce. parallel to the coastline, with a few for an authorization to incidentally take ACTION: Notice of receipt of application south-north lines approximately 9.65 small numbers of marine mammals by and proposed authorization for a small km in length to be acquired over key harassment. The MMPA defines take exemption; request for comments. geological features. There will be ‘‘harassment’’ as: approximately 64 east-west transects SUMMARY: NMFS has received a request ** * any act of pursuit, torment, or and 6 south-north transects over the 2- from the Exxon Company, U.S.A., annoyance which (a) has the potential to month period. Field operations will be Thousand Oaks, CA, for authorization to injure a marine mammal or marine mammal conducted 24 hours a day, although take small numbers of cetaceans by stock in the wild; or (b) has the potential to about half of that time will be consumed harassment incidental to conducting a disturb a marine mammal or marine mammal stock in the wild by causing disruption of by turning the vessel and maneuvering. three-dimensional (3–D) seismic survey The airgun arrays will be shut down in the Santa Ynez Unit (SYU), located behavioral patterns, including, but not limited to, migration, breathing, nursing, during turning and maneuvering and in the western portion of the Santa breeding, feeding, or sheltering. will be powered up slowly over a 5- Barbara Channel, offshore California, in minute period when turned back on. Federal waters. Under the Marine New subsection 101(a)(5)(D) Eighty to 90 percent of the proposed Mammal Protection Act (MMPA), NMFS establishes a 45-day time limit for survey will be accomplished with a is requesting comments on its proposal NMFS review of an application single vessel. A second vessel will be to authorize Exxon to incidentally take, followed by a 30-day public notice and used to undershoot platform structures by harassment, small numbers of comment period on any proposed and some complex subsurface geological cetaceans in the above mentioned area authorizations for the incidental features of limited areal extent. Two for a period of 1 year. harassment of small numbers of marine vessels abreast each other will be used DATES: Comments and information must mammals. Within 45 days of the close for undershooting. The survey is be received no later than July 7, 1995. of the comment period, NMFS must designed to acquire the maximum either issue or deny issuance of the ADDRESSES: Comments on the amount of data in the minimum amount authorization. application should be addressed to of time. Exxon plans to initiate the Chief, Marine Mammal Division, Office Summary of Request survey around August 1, 1995, and of Protected Resources, National Marine complete data collection approximately On May 11, 1995, NMFS received an Fisheries Service, 1315 East-West October 1, 1995, prior to the onset of application from Exxon requesting an Highway, Silver Spring, MD 20910– adverse weather and gray whale authorization for the harassment of 3225. A copy of the application and a migration in the Santa Barbara Channel small numbers of cetaceans incidental list of references used in this document area. to conducting a 3–D seismic survey may be obtained by writing to this Exxon will employ a 90-m seismic within the SYU, located in the western address or by telephoning one of the vessel to acquire the survey data. The portion of the Santa Barbara Channel, contacts listed below. seismic source will consist of dual off Southern California, in U.S. waters. airgun arrays deployed 37.5 m apart and FOR FURTHER INFORMATION CONTACT: As described in their application fired alternately to acquire separate Kenneth Hollingshead, Office of (Exxon, 1995) Exxon’s survey will cover records. Each array will consist of 18 Protected Resources at 301–713–2055, an area of approximately 303 km 2 of the airguns of differing strengths producing or Craig Wingert, Southwest Regional outer continental shelf and will require a total of 8.62 megapascals peak to peak Office at 310–980–4021. approximately 2 months, commencing energy. The airguns will be sleeve type SUPPLEMENTARY INFORMATION: in August 1995, to complete. The survey guns towed at a depth of 5 to 10 m will provide subsurface data that will below the water surface. Paravanes will Background enable Exxon to more accurately assess be deployed to separate the airgun Section 101(a)(5)(A) of the MMPA (16 the oil and gas reservoirs in order to arrays. U.S.C. 1361 et seq.) directs the Secretary optimally locate future development The proposed survey could of Commerce to allow, upon request, the wells from existing platforms. potentially affect marine mammals due Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30067 to disturbance by sound (i.e., acoustic sperm whale (Physeter macrocephalus; The ZPD was conservatively assumed harassment). (6) pygmy sperm whale (Kogia to be the entire survey area (303 km2) breviceps); (7) sei whale (Balaenoptera Description of Habitat and Marine plus an additional area to account for borealis); and (8) Bryde’s whale Mammal Affected by the Activity the travel of sound outside the survey (Balaenoptera edeni). In addition, area perimeter. To determine the outer The Southern California Bight (SCB) because this proposed authorization boundary of the affected area, it was including the Channel Islands, supports may extend into the period of time concluded that the 160 dB level could a diverse assemblage of marine when gray whales (Eschrichtius be considered a conservative end point mammals including cetaceans (whales, robustus) may be present, that species for potential marine mammal acoustic dolphins, and porpoises) and pinnipeds may also be affected. Detailed harassment. Tyack (1988) indicates that (seals and sea lions). A detailed descriptions of the distribution and avoidance behavior occurs only at description of the SCB and its abundance of these species in California relatively close ranges at decibels associated marine mammals can be waters can be found in Barlow (1994, greater than 160–170 dB for pulsed found in the Federal Register (56 FR 1995), Forney (1994) Forney et al. (1995) sounds such as those from airguns. It 1606, January 16, 1991) and need not be and NMFS (1993). repeated here. has been presumed that less than 10 Approximately 34 species of marine Potential Effects of Seismic Surveys on percent of animals located beyond the mammals inhabit the SCB. They include Marine Mammals 160 dB range would be subjected to 6 species of pinnipeds and 27 species of acoustic harassment (Malme et al., 1984; The airguns emit pulsed energy cetaceans. The status of these species LGL Assoc., 1991). Therefore, NMFS has primarily at frequencies in the 10 to 300 has been reviewed previously (NMFS, adopted a level of 160 dB (re 1µPa) as Hz range. Dolphin, porpoise, seal, and 1991 1). Recently, NMFS released draft an acceptable level for impulsive noise sea lion hearing is believed to be poor revised stock assessment reports (59 FR based upon the best scientific evidence at frequencies less than 1,000 Hz, and 40527; August 9, 1994).2 These reports available. thus it is unlikely that the airgun noise include information on status and For the proposed survey, the 160 dB trends of marine mammals and an would significantly affect them. Acoustic harassment takes, therefore, isopleth occurs at a radius of assessment of all human-caused approximately 5.2 km from the seismic mortality and serious injury of the need to be assessed only for mysticete whales and the sperm whale, because source (Exxon, 1995). The ZPD was various stocks of marine mammals. calculated by expanding the entire It is possible that acoustic harassment they represent the only group that is believed to be able to hear or possibly perimeter of the SYU survey area by 5.2 by seismic survey operations could km. This area was calculated to be 470 potentially occur for mysticete whales react to the sound associated with km 2, and when added to the survey area and possibly the sperm whale, since seismic activities. 303 km 2, resulted in a total ZPD of 773 they represent the only species assumed To determine the numbers of whales km 2. However, at any instant of time, to hear well the noise associated with that could potentially be subject to harassment would be limited to an area airguns. Given the survey location and acoustic harassment, marine mammal approximately 84.9 km 2 the time period within which the survey densities were applied over the , with a radius will be conducted, the species of whales anticipated zone of potential of 5.2 km around the airgun array when that could be potentially affected are the disturbance (ZPD). The densities the array is generating sound. following: (1) Blue whale (Balaenoptera utilized (Barlow, 1995) were obtained Using the above information and musculus); (2) fin whale (Balaenoptera along the California coast during the assumptions, the number of marine physalus); (3) humpback whale summer and fall seasons of the year, mammals that could potentially be (Megaptera novaeangliae); (4) minke which is consistent with the time period subject to acoustic harassment is as whale (Balaenoptera acutorostrata); (5) of the proposed survey. follows: Number of 3 4 Whale species Density animals (number/km 2) acoustic harassment Blue whale ...... 0.033 26 Fin whale ...... 0.013 10 Humpback whale ...... 0.009 7 Minke whale ...... 0.008 6 Sperm whale ...... 0.011 9 Pygmy sperm whale ...... 0.013 10 Sei whale ...... 0.001 1 Bryde's whale ...... 0.001 1 Gray whale ...... 0.014 11 Total ...... 81 3 From Barlow (1995). 4 Density X ZPD=No. Animals. 1 A list of references used in this document can assessment reports. The reports are stored as appropriate baud rate up to 19,200. Instructions to be obtained by writing to the address provided Wordperfect 5.1 files and may be downloaded by download files are available on screen. above (see ADDRESSES). a modem link to the following telephone number: 2 NMFS has established a bulletin board for (703) 218–2595. Within your communications electronic retrieval of marine mammal stock software, specify 8 data bits, no parity, and 1 stop bit. Set up as an ANSI terminal and use your 30068 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices However, because the potential exists potentially be subject to acoustic result of either normal transitting that the survey schedule could be harassment. (migration) or seismic noise. Also, while the assumption can be delayed and overlap with the NMFS estimates that each east-west made that a population of 70–81 southbound gray whale migration, some and south-north transect would have a or all of the survey could also cetaceans may be harassed during the 2 SYU survey, because the 160 dB ZPH at ZPH approximately 344 km and 147.3 potentially result in harassing gray km2, respectively and each of the 64 whales. To cover that possibility, a any one instant of time is only a portion 2 east-west or 6 south-north transects proposed authorization for harassment of the entire 773 km ZPD, and because the seismic array is turned off while comprise approximately 45 percent or takes of gray whales has been included. repositioning on the succeeding 19 percent respectively, of the total Applying Forney et al.’s (1995) gray transect, these cetaceans, at least ZPD. As a result, theoretically there is whale density from the winter/spring theoretically, may be harassed more the potential for the SYU seismic survey 2 surveys (0.014) to the ZPD (773 km than once during the course of the to result in 2,360 harassment takings indicates that 11 gray whales could survey, unless they leave the area as a proportionally divided as follows: Density Total ZPD Total number Whale species 2 2 of harassment (No./km (km ) takes Blue whale ...... 0.033 22,900 756 Fin whale ...... 0.013 22,900 298 Humpback whale ...... 0.009 22,900 206 Minke whale ...... 0.008 22,900 183 Sperm whale ...... 0.011 22,900 252 Pygmy sperm whale ...... 0.013 22,900 298 Sei whale ...... 0.001 22,900 23 Bryde's whale ...... 0.001 22,900 23 Gray whale ...... 0.014 22,900 5 321 5 As gray whales generally migrate from feeding grounds to breeding lagoons offshore Baja California from November±December, if the seis- mic survey is delayed from its anticipated commencement date, some harassment of this species may occur. Mitigation of completion of the survey. Specific are incorporated. NMFS has To avoid potential injury to marine monitoring and reporting requirements preliminarily determined that the mammals, NMFS proposes to: (1) will be specified in the Incidental proposed seismic activity would result Require airguns to be ramped-up to Harassment Authorizaion, if issued. in the harassment of only small numbers of mysticete cetaceans, sperm operating levels over a 5-minute period Consultation at the commencement of operations, whales, and possibly pygmy sperm when beginning a new trackline or Under section 7 of the Endangered whales; will have a negligible impact on anytime that the array is powered down; Species Act, NMFS has begun these cetacean stocks; and will not have (2) recommend not turning the array off consultation on the proposed issuance an unmitigable adverse impact on the at times when restarting the array would of this authorization. Consultation will availability of this stock for subsistence occur during nighttime hours; and (3) if be concluded upon completion of the uses. comment period and consideration of marine mammals are observed within Information Solicited the 195 dB isopleth (91.5 m (300 ft) of those comments in the final the source), starting operations must be determination on issuance of an NMFS requests interested persons to delayed until all marine mammals are authorization. submit comments, information, and suggestions concerning this request (see outside the 195 dB zone. It is proposed Conclusions that NMFS-approved observers be ADDRESSES). required to make these observations. NMFS has determined preliminarily Dated: June 2, 1995. that the short-term impact from Monitoring William W. Fox, Jr., conducting a 3–D seismic survey within Director, Office of Protected Resources, NMFS proposes that the holder of the the SYU may result in a temporary National Marine Fisheries Service. Incidental Harassment Authorization modification in behavior by certain [FR Doc. 95–13966 Filed 6–6–95; 8:45 am] will monitor the impact of seismic species of cetaceans. While behavioral BILLING CODE 3510±22±W activities on the marine mammal modifications may be made by these populations within the SYU. Monitoring species of cetaceans to avoid seismic will be conducted during daylight hours noise, this behavioral change is [I.D. 060195A] by NMFS-approved observers. In expected to have only a negligible addition, monitoring will begin 30 impact on the animals. Shark Operations Team; Public minutes prior to any time the seismic There is no known recent subsistence Meeting array is turned on and will continue use of marine mammals in southern AGENCY: National Marine Fisheries until turned off. Monitoring will consist California. Service (NMFS), National Oceanic and of noting the numbers and species of all Proposed Authorization Atmospheric Administration (NOAA), marine mammals seen within the ZPH, Commerce. and any behavioral responses or NMFS proposes to issue an incidental ACTION: Notice of public meeting. modifications due either to the seismic harassment authorization for 1 year for array or by the vessel. A report on this a 3–D seismic survey within the SYU SUMMARY: The Shark Operations Team monitoring program will be required to provided the above mentioned (OT) will hold a meeting on June 8, be submitted to NMFS within 90 days monitoring and reporting requirements 1995, at NMFS in Silver Spring, MD. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30069 DATES: The meeting will be held on June section 155 or 156, or (b) 20 years from for commercial marketing by the 8, 1995 from 9 a.m. to 5 p.m. their relevant filing date. relevant regulatory authority. ADDRESSES: The meeting will be held at FOR FURTHER INFORMATION CONTACT: After analyzing the written comments received regarding the PTO’s proposed NMFS, 1315 East-West Highway, Room H. Dieter Hoinkes, by telephone at (703) 12836, Silver Spring, MD 20910. intent to determine the expiration dates 305–9300, by facsimile at (703) 305– of the relevant patents, taking into FOR FURTHER INFORMATION CONTACT: C. 8885, or by mail marked to his attention account the three criteria noted above, Michael Bailey, telephone: (301) 713- addressed to the Commissioner of it has been concluded that criterion (2) 2347, Fax (301–713–0596). Patents and Trademarks, Box 4, is in error and that, therefore, the steps SUPPLEMENTARY INFORMATION: The Washington, DC 20231. outlined in criterion (3) are not an following topics will be discussed: SUPPLEMENTARY INFORMATION: Under appropriate course of action. The (1) 1995 Shark Evaluation Annual section 156 of title 35, United States provisions of section 156 cannot be Report; Code, patent term extensions are issued applied in vacuo without obtaining (2) First semi-annual fishing season for eligible patents from the original results that could not have been for sharks; expiration date of the patent. Since this intended by the URAA or that are (3) Results of recent management provision was enacted in 1984, the PTO inconsistent with section 156 itself. measures; has issued 195 certificates of patent The entire argument in favor of (4) Possible permit moratorium; term extension in accordance with adding an extension obtained under (5) Possible fishing season section 156. Under the Uruguay Round section 156 to a 20-year term obtained modifications; Agreements Act (‘‘URAA’’), Public Law under the URAA, was the manner of (6) Data collections issues; and 103–465, patents in force on June 8, interpreting the provision in section (7) Possible changes in management 1995, are entitled to a patent term of 17 156(a), requiring that the term of a measures of whale shark, Rhincodon years from grant or 20 years from their patent be extended from its ‘‘original typus, basking shark, Cetorhinus earliest filing date, whichever is greater expiration date’’. The term ‘‘original maximus and white shark, Carcharodon (See 35 U.S.C. 154(c)(1)). expiration date’’ was proposed to be the carcharias. On February 16, 1995, the PTO held date of a patent’s expiration without the The meeting may be lengthened or a public hearing to elicit comments on aid of an extension period, which was shortened based on the progress of the what action it should take regarding proposed to be the end of the 20-year meeting. The meeting is open for the patents that are entitled to a longer term for those patents entitled to such public to attend. This meeting is patent term under the URAA and that term. physically accessible to people with had previsouly been extended under This narrow interpretation of section disabilities. Requests for sign language section 156. (See 60 FR 3398 (Jan. 17, 156, however, did not take into account interpretation or other auxiliary aids 1995)). After having considered all the that the term ‘‘original’’ has several should be directed to C. Michael Bailey comments, both written and oral, the meanings, all of which must be taken at least 5 days prior to the meeting date. PTO requested public comments on its into consideration to avoid an improper interpretation of the relationship Dated: June 1, 1995. intent to publish the new expiration between section 154(c)(1), added to title Richard W. Surdi, date of all patents that fall into the 35 by the URAA, and section 156, category mentioned above (See 60 FR Acting Director, Office of Fisheries enacted in 1984. To that end, 15748 (March 27, 1995)), using the Conservation and Management, National considering the expiration of the longer Marine Fisheries Service. following three criteria: 20-year term to be the original [FR Doc. 95–13858 Filed 6–2–95; 9:22 am] (1) A patent that would have expired expiration date, ignores the fact that BILLING CODE 3510±22±F under the original 17-year patent term when the patent was issued, it originally before June 8, 1995, but that has had an expiration date of 17 years from received a patent term extension for a grant. That date must continue to be Patent and Trademark Office period beyond June 8, 1995, is a patent considered ‘‘original’’ for two reasons. ‘‘in force’’ on June 8, 1995, even though One is, that this was the date on Determination of New Expiration Dates the rights derived from that patent are of Certain Patents which the patent, when granted, was set circumscribed by section 156(b) of title to expire. Accordingly, if a patent is AGENCY: Patent and Trademark Office, 35. now entitled to a longer 20-year term, Commerce. (2) The ‘‘original expiration date of such is merely an added time period ACTION: final Determination. the patent’’ referred to in section 156(a) beyond the original expiration date. The of title 35 is the date on which the other reason is the impossibility of SUMMARY: The Patent and Trademark patent would have expired if it had not having more than one ‘‘original Office (PTO) has determined the been extended under section 156 to expiration date’’ without having to refer expiration date of patents that: expire at a later date. Therefore, the to one as the first ‘‘original’’ and to the (1) Are in force on June 8, 1995, and, ‘‘original expiration date’’ of the patents other as the second or new ‘‘original’’, therefore, are entered to the greater of a under consideration is the date on the latter being a contradiction in terms. term of 20 years from their relevant which the 20-year term from filing Had criteria (2) and (3) been adopted, filing date, or 17 years from grant, and expires. additional anomalies would have arisen. (2) Have received a term extension (3) The extension already issued on For example, the term ‘‘original under section 155 or 156 of title 35, the basis of the 17-year term is added to expiration date’’ means the date on United States Code, or will receive a the 20-year term, subject to the which a patent would have expired term extension under section 156 in the limitation by imposed by section without the extension added by section future. 156(c)(3) of title 35. That provision 156. In the case of many patents in All patents falling in this category are limits the period remaining in the term question, their being in force on June 8, entitled to the longer term of either (a) of an extended patent to fourteen years 1995, and their entitlement, therefore, to 17 years from grant, supplemented by counted from the date on which the the longer term of 20 years from filing, the period of extension obtained under product under review received approval was solely due to an extension of the 30070 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices original patent term under section 156. term of 17 years from grant, the satisfied, because all previously In other words, their entitlement to a 20- provisions of the URAA are satisfied in extended terms exceed a term of 20 year term rests on a patent term cases where the extension under section years from the patents’ relevant filing extension. It is not reasonable, therefore, 156, added to the 17-year term, expires dates. Accordingly, section 154(c)(1) to ascribe to the end of such 20-year later than 20 years from the filing date. does not benefit any of the patents term the appellation ‘‘original All patents in force on June 8, 1995, already extended under section 155. expiration’’ which under the provisions were originally issued with a term of 17 of section 156(a) was supposed to have years from grant. The fact that on June Comments been achieved without the aid of an 8, 1995, these patents are entitled to a Nine written comments were received extended term. term of 20 years from filing, if that term in response to PTO’s request for Moreover, in cases where the 17-year exceeds the 17-year term, does not move comments mentioned above. Responses term expires before June 8, 1995, and the original expiration date from which to significant comments follow. the patent is kept in force on that date a period of extension continues, if 1. Comment: One comment urged that by virtue of an extension under section granted under section 156. It only any period of patent term extension 156, transposing such extension to the provides a new—albeit not original— used to keep a patent in force on June end of the 20-year term would have expiration date. Accordingly, all patents 8, 1995, not be added to the 20-year resulted in applying at least some of the in this category are entitled either to the term and that only the portion of the extended period twice to the term of the 17-year term, as augmented by an extended patent term past June 8, 1995, patent. This result would have been extension under section 156, or to a 20- be added. especially curious in instances where year term from the relevant filing date, Response: The suggestion has not both the original 17 and the 20-year whichever is longer. This determination been adopted because neither section terms expired before June 8, 1995. is fully consistent with section 154(c)(1) 156 of title 35, nor section 154(c)(1), as Another vexing problem that would of title 35, as added by the URAA, added by the URAA, contains a have arisen had the PTO proposal been because extensions under section 156 provision that would permit adopted, concerns the question of the are not addressed by section 154(c)(1) apportioning a term of patent extension rights that a patent holder derives and are, therefore, left untouched. in the manner suggested. during the period of extension under Of course, all patents issued after June 2. Comment: Two comments section 156. If this period had been 8, 1995, on applications filed before that suggested that all patents that received added to the 20-year term, a patentee date, are also entitled to a term that is an extension under section 156 prior to would have had full exclusionary rights the greater of 17 years from grant or 20 June 8, 1995, were extended from an until the end of the 17-year term, years from their relevant filing date. ‘‘original expiration date’’ and that followed by rights only to equitable Extensions under section 156 granted to neither the URAA nor section 156 remuneration with respect to a certain these patents must be calculated with authorizes any alteration. It was class of infringers during the period reference to whatever term is applicable suggested, therefore, that any patent in from the end of the 17-year term to the at their time of issue and will then be force on June 8, 1995, should expire end of the 20-year term, and followed by added to that term. As these patents either at the end of the term extension a restoration of full exclusionary rights have only one term at issue, there is no under section 156 as added to the 17- with respect to the approved product question regarding their original year term, or at the end of 20 years from during the continuing period of expiration date. filing, whichever is longer. extension under section 156. A more Further, under the provisions of Response: The suggestion has been reasonable solution, such as a section 155 of title 35, 33 patents were adopted for the reasons given above. continuation of limited patent rights extended, each for a length of time to be 3. Comment: Four comments during the period of extension, has no measured from the date a ‘‘stay of endorsed the PTO’s proposal to move statutory foundation, because section regulation of approval was imposed’’ the term of extension from the original 154(c)(2) added by the URAA does not (December 5, 1975) to the date expiration date of the patent to its new address extensions under section 156, commercial marketing was permitted expiration date, although two of the which itself contains an explicit (October 22, 1981). This time period comments took issue with the proposal provision regarding a patentee’s rights amounts to 2,148 days. One of these 33 that the period of extension comply during the period of extension. patents expired in 1992, leaving 32 in with the limitation proposed by section In analyzing section 156(a), it must be force on June 8, 1995. 156(c)(3). remembered that at the time of its Section 155 differs from section 156 Response: In light of the fact that the enactment in 1984, only one patent in providing that ‘‘the term of a patent original PTO proposal has not been term—seventeen years from grant—was ** * shall be extended * * * by a followed, the question of the available and that all extensions granted length of time * * *’’, rather than that applicability of section 156(c)(3) is under section 156 until now were added the term of a patent shall be extended moot. Nevertheless, it appears to that patent term. Because the URAA ‘‘from the original expiration date.’’ This anomalous that some supporters of the does not address the question of patent difference, however, has no practical original PTO proposal would have term extension under section 156, the effect because the 33 patents that looked to section 156 for support of extensions of all patents issued before originally were eligible for extension transposing the period of extension, June 8, 1995, must continue to be under section 155 already have been while disclaiming the validity of other calculated by the PTO on the basis of extended, as required by that provision. provisions in section 156 that materially the 17-year term from grant and added The provisions of section 154(c)(1), affect that extension. to that term. This is necessitated by the therefore, would only have had an 4. Comment: One comment suggested fact that all patents in that category have effect, if the 20-year term to which 21 that the PTO certify the new patent an original expiration of 17 years from patents are entitled, exceeded the 17- expiration date upon the patentee’s grant, even though they may be entitled year patent term, as extended by 2,148 request. to a term of 20 years from filing under days. Applying the provisions of section Response: The suggestion has not the URAA. Further, where the 20-year 154(c)(1) to these patents, however, been adopted, as this final term from filing exceeds the original reveals that its requirements are already determination of the expiration dates of Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30071 the relevant patents makes certification SUPPLEMENTARY INFORMATION: The Office Directorate for Personnel and Security, unnecessary. of the Secretary of Defense notices for Washington Headquarters Services, to It should be noted that any patent in systems of records subject to the Privacy issue, deny, and revoke security force on June 8, 1995, and any patent Act of 1974 (5 U.S.C. 552a), as amended, clearances. issued on the basis of an application have been published in the Federal To be used by members of the filed before June 8, 1995, are entitled to Register and are available from the Washington Headquarters Services the longer term of 17 years from grant address above. Clearance Appeal Board to determine or 20 years from the relevant filing date. The proposed system report, as appeals of clearance denials and Because patents issued before June 8, required by 5 U.S.C. 552a(r) of the revocations. 1995, were initially given a term of 17 Privacy Act of 1974, as amended, was years from grant, any extension under submitted on May 23, 1995, to the ROUTINE USES OF RECORDS MAINTAINED IN THE section 156 must begin from the original SYSTEM, INCLUDING CATEGORIES OF USERS AND Committee on Government Reform and THE PURPOSES OF SUCH USES: expiration date, which is the end of the Oversight of the House of In addition to those disclosures 17-year term. If the term of 20 years Representatives, the Committee on generally permitted under 5 U.S.C. from the relevant filing date exceeds the Governmental Affairs of the Senate, and 552a(b) of the Privacy Act, these records expiration of the extended term, the the Office of Management and Budget or information contained therein may patent is entitled to such later (OMB) pursuant to paragraph 4c of specifically be disclosed outside the expiration date. Patents issued after Appendix I to OMB Circular No. A–130, DoD as a routine use pursuant to 5 June 8, 1995, on the basis of ‘Federal Agency Responsibilities for U.S.C. 552a(b)(3) as follows: applications filed before such date, are Maintaining Records About also entitled to the greater one of the The ‘Blanket Routine Uses’ set forth at Individuals,’ dated July 25, 1994 (59 FR the beginning of OSD’s compilation of two terms mentioned above. However, 37906, July 25, 1994). as this term attaches at the time of issue, systems of records notices apply to this the question of what term is extended Dated: June 1, 1995. system. under section 156 does not arise. POLICIES AND PRACTICES FOR STORING, As the information to determine the RETRIEVING, ACCESSING, RETAINING, AND Patricia L. Toppings, applicable expiration dates of all these DISPOSING OF RECORDS IN THE SYSTEM: patents is readily available from Alternate OSD Federal Register Liaison STORAGE: relevant patent documents, publication Officer, Department of Defense. of their expiration dates is not necessary Hard copy files are maintained in file for the purpose of clarification. folders; computer files are stored on DWHS P29 magnetic tape and disk. Dated: June 1, 1995. SYSTEM NAME: Bruce A. Lehman, RETRIEVABILITY: Assistant Secretary of Commerce and Personnel Security Adjudications Active personnel security Commissioner of Patents and Trademarks. File. adjudication files are maintained [FR Doc. 95–13848 Filed 6–2–95; 1:42 pm] SYSTEM LOCATION: alphabetically by last name of subject, BILLING CODE 3510±16±M Directorate for Personnel and or by Social Security Number. Security, Washington Headquarters Inactive personnel security Services, Consolidated Adjudications adjudication files are serially numbered DEPARTMENT OF DEFENSE Facility, 1725 Jefferson Davis Highway, and indexed alphabetically. Suite 212A, Arlington, VA 22202–4191. Office of the Secretary SAFEGUARDS: CATEGORIES OF INDIVIDUALS COVERED BY THE Files are maintained under the direct Privacy Act of 1974; Notice To Add a SYSTEM: control of office personnel in the Record System Civilian employees of the Office of the Consolidated Adjudications Facility during duty hours. Office is locked and AGENCY: Office of the Secretary of Secretary of Defense, its components and supported organizations, the alarmed during non-duty hours. Defense, DOD. Computer media is stored in controlled ACTION: Notice to Add a Record System. Defense Agencies (excluding the Military Departments, the Defense areas. Dial-up computer terminal access SUMMARY: The Office of the Secretary of Intelligence Agency, the Defense is controlled by user passwords that are Defense proposes to add one system of Mapping Agency, the Office of the Joint periodically changed. records notices to its inventory of record Staff, the National Security Agency, and RETENTION AND DISPOSAL: systems subject to the Privacy Act of contractors), and certain personnel Routine cases or those containing 1974 (5 U.S.C. 552a), as amended. selected for assignment to the United only minor derogatory information that DATES: The addition will be effective on States Mission to NATO. result in a favorable determination for July 7, 1995, unless comments are CATEGORIES OF RECORDS IN THE SYSTEM: the individual are destroyed 15 years received that would result in a contrary after completion date of the last determination. Records relating to an individual’s personnel security clearance/ investigative action for that file. ADDRESSES: Send comments to Chief, Files on persons who are considered adjudication actions. Records Management and Privacy Act for affiliation with the DoD will be Branch, Washington Headquarter AUTHORITY FOR MAINTENANCE OF THE SYSTEM: destroyed after 1 year if the affiliation is Services, Correspondence and 5 U.S.C. Section 301, Executive Order not completed. Directives, Records Management 12356, Executive Order 10450, Cases containing significant Division, 1155 Defense Pentagon, Executive Order 9397. derogatroy information are destroyed 25 Washington, DC 20301–1155. years after the date of the last action, FOR FURTHER INFORMATION CONTACT: Mr. PURPOSE(S): except those files deemed to be of Dan Cragg at (703) 695–0970 or DSN To be used by officials of the historcial value and/or or widespread 225–0970. Consolidated Adjudications Facility, public or congressional interest, which 30072 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices may be retired to the National Archives records, reports and evaluations; and Written requests for copies of the after 15 years.. correspondence from employing information collection proposal should agencies, and DoD and other Federal be sent to Mr. Pearce, WHS/DIOR, 1215 SYSTEM MANAGER(S) AND ADDRESS: organizations, agencies and offices. Jefferson Davis Highway, Suite 1204, Director for Personnel and Security, Arlington, VA 22202–4302. Washington Headquarters Services, EXEMPTIONS CLAIMED FOR THE SYSTEM: 1155 Defense Pentagon, Room 3B347, Portions of this system may be exempt Dated: June 2, 1995. Washington, DC 20301–1155. from certain provisions of 5 U.S.C. Patricia L. Toppings, 552a(k)(5), as applicable. Alternate OSD Federal Register Liaison NOTIFICATION PROCEDURE: An exemption rule for this record Officer, Department of Defense. Individuals seeking to determine system has been promulgated in [FR Doc. 95–13970 Filed 6–6–95; 8:45 am] whether information about themselves accordance with the requirements of 5 BILLING CODE 5000±04±P is contained in this system should U.S.C. 553(b) (1), (2), and (3), (c) and (e) address written inquiries to the and published in 32 CFR part 311. For Consolidated Adjudications Facility, additional information contact the Public Information Collection Washington Headquarters Services, system manager. Requirement Submitted to the Office of Personnel and Security Directorate, [FR Doc. 95–13971 Filed 6–6–95; 8:45 am] Management and Budget (OMB) for 1725 Jefferson Davis Highway, Suite BILLING CODE 5000±04±F Review; Notice 212A, Arlington, VA 22202–4191. Requesters should provide full name The Department of Defense has and any former names used, date and Public Information Collection submitted to OMB for clearance, the place of birth, and Social Security Requirement Submitted to the Office of following proposal for collection of Number. Management and Budget (OMB) for information under the provisions of the Review; Notice Paperwork Reduction Act (44 U.S.C. RECORD ACCESS PROCEDURES: Chapter 35). Individuals seeking access to The Department of Defense has Title; Applicable Forms; and OMB information about themselves contained submitted to OMB for clearance, the Control Number: Lock Performance in this system of records should address following proposal for collection of Monitoring System (PMS) Waterway written inquiries to Consolidated information under the provisions of the Traffic Report; ENG Forms 3102C and Adjudications Facility, Washington Paperwork Reduction Act (44 U.S.C. 3102D; OMB Control Number 0710– Headquarters Services, Personnel and Chapter 35). 0008 Security Directorate, 1725 Jefferson Title and OMB Control Number: DoD Type of Request: Reinstatement Davis Highway, Suite 212A, Arlington, FAR Supplement, Part 244, Number of Respondents: 3,000 VA 22202–4191. Subcontracting Policies and Responses Per Respondent: 251.2 Requesters should provide full name Procedures; OMB Control Number Annual Responses: 753,600 and any former names used, date and 0704–0253 Average Burden Per Response: 2.5 place of birth, and Social Security Type of Request: Extension minutes Number. Number of Respondents: 375 Annual Burden Hours: 30,898 Requests must be signed and Responses per Respondent: 1 Needs and Uses: In accordance with 5 notarized or, if the individual does not Annual Responses: 375 USC 554, owners, masters, and clerks have access to notary services, preceded Average Burden per Response: 80 hours of vessels arriving at or departing Annual Burden Hours: 30,000 by a signed and dated declaration from certain localities submit verifying the identity of the requester, in Needs and Uses: In accordance with Subpart 244.305–70 of the DoD FAR waterway traffic log data on ENG substantially the following form: ‘I Forms 3102C and 3102D. The certify that the information provided by Supplement, contractors are requested to submit plans for correction of information collected hereby, is used me is true, complete, and accurate to primarily by the Corps of Engineers in the best of my knowledge and belief and deficiencies noted in Contractor Performance System Reviews (CPSRs) conducting a system-wide approach this request is made in good faith. I to planning and management of the understand that a knowing and willful within 15 days following completion of the CPSR. The information waterways. It is additionally used in false, fictitious or fraudulent statement responding to requests for summary or representation can be punished by collected hereby, is used to make decisions regarding purchasing data from Federal, state, and local fine or imprisonment or both.’ government agencies, and trade (Signature). system approval, as a result of the CPSR. associations and publications. CONTESTING RECORDS PROCEDURES: Affected Public: Businesses or other for- Affected Public: Businesses or other for- The OSD’s rules for accessing records, profit; Not-for-profit institutions profit; Small businesses or for contesting contents and appealing Frequency: On occasion organizations initial agency determinations are Respondent’s Obligation: Required to Frequency: On occasion contained in OSD Administrative obtain or retain a benefit Respondent’s Obligation: Mandatory Instruction No. 81; 32 CFR part 311; or OMB Desk Officer: Mr. Peter N. Weiss. OMB Desk Officer: Mr. Matthew may be obtained from the system Written comments and Mitchell. Written comments and manager. recommendations on the proposed recommendations on the proposed information collection should be sent information collection should be sent RECORD SOURCE CATEGORIES: to Mr. Weiss at the Office of to Mr. Mitchell at the Office of Information is received from Management and Budget, Desk Officer Management and Budget, Desk Officer individuals, their attorneys and other for DoD, Room 10236, New Executive for DoD, Room 10202, New Executive authorized representatives; investigative Office Building, Washington, DC Office Building, Washington, DC reports from Federal investigative 20503. 20503. agencies; personnel security records and DOD Clearance Officer: Mr. William DOD Clearance Officer: Mr. William correspondence; medical and personnel Pearce. Pearce. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30073 Written requests for copies of the Written requests for copies of the Dated: June 2, 1995. information collection proposal should information collection proposal should Patricia L. Toppings, be sent to Mr. Pearce, WHS/DIOR, 1215 be sent to Mr. Pearce, WHS/DIOR, 1215 Alternate OSD Federal Register Liaison Jefferson Davis Highway, Suite 1204, Jefferson Davis Highway, Suite 1204, Officer, Department of Defense. Arlington, VA 22202–4302. Arlington, VA 22202–4302. [FR Doc. 95–13968 Filed 6–6–95; 8:45 am] Dated: June 2, 1995. Dated: June 2, 1995. BILLING CODE 5000±04±P Patricia L. Toppings, Patricia L. Toppings, Alternate OSD Federal Register Liaison Alternate OSD Federal Register Liaison Officer, Department of Defense. Officer, Department of Defense. Department of the Air Force [FR Doc. 95–13969 Filed 6–6–95; 8:45 am] [FR Doc. 95–13967 Filed 6–6–95; 8:45 am] USAF Scientific Advisory Board BILLING CODE 5000±04±P BILLING CODE 5000±04±P Meeting The Human Systems & Biotechnology Public Information Collection Public Information Collection Panel of the USAF Scientific Advisory Requirement Submitted to the Office of Requirement Submitted to the Office of Board will meet on 28 June 1995 at The Management and Budget (OMB) for Management and Budget (OMB) for University of Pennsylvania, PA from Review; Notice Review; Notice 8:00 a.m. to 5:00 p.m. The purpose of the meeting is to The Department of Defense has The Department of Defense has gather data in support of the 1995 submitted to OMB for clearance, the submitted to OMB for clearance, the Summer Study on New World Vistas. following proposal for collection of following proposal for collection of The meeting will be opened to the information under the provisions of the information under the provisions of the public in accordance with Section 552b Paperwork Reduction Act (44 U.S.C. Paperwork Reduction Act (44 U.S.C. of Title 5, United States Code, Chapter 35). Chapter 35). specifically subparagraphs (1) and (4) Title: Terminal and Transfer Facilities Title: Intercontinental Ballistic Missile thereof. Survey; WRSC Forms 1, 2, 3, 4, 5, 6, Hardened Intersite Cable System For further information, contact the 7, 8, and 9; OMB Control Number Right-of-Way Landowner/Tenant Scientific Advisory Board Secretariat at 0710–0007 Questionnaire (703) 697–8845. Type of Request: Reinstatement Type of Request: Existing collection Patsy J. Conner, Number of Respondents: 1,489 Number of Respondents: 4,000 Responses per Respondent: 1 Air Force Federal Register Liaison Officer. Annual Responses: 1,489 Responses per Respondent: 1 [FR Doc. 95–13841 Filed 6–6–95; 8:45 am] Average Burden per Response: 15 Annual Responses: 4,000 BILLING CODE 3910±01±P minutes Average Burden per Response: 15 Annual Burden Hours: 372 minutes USAF Scientific Advisory Board Needs and Uses: The information Annual Burden Hours: 1,000 Meeting collected hereby, is used by the Corps Needs and Uses: The questionnaire is of Engineers (COE) to compile the designed to report changes in The Materials Panel of the USAF annual Port Series Reports required ownership/lease information, Scientific Advisory Board will meet on by the Rivers and Harbors Act. It is conditions of missile cable route and 29–30 June 1995 at Wright Patterson additionally used within COE for associated appurtenances, and AFB, OH from 8:00 a.m. to 5:00 p.m. navigation and planning functions, by projected building/excavation The purpose of the meeting is to the Coast Guard for marine safety projects. The information collected gather data in support of the 1995 inspections, by the Department of the hereby, is used to ensure system Summer Study on New World Vistas. Navy for guidance in providing safe integrity and to maintain a close The meeting will be opened to the passage in time of national contact public relations program with public in accordance with Section 552b emergency, by the Department of the involved personnel and agencies. of Title 5, United States Code, Army for mission deployment Affected Public: Individuals or specifically subparagraphs (1) and (4) planning, and by the public for households; Farms thereof. general reference, planning, and Frequency: Biennially For further information, contact the various studies. Respondent’s Obligation: Voluntary Scientific Advisory Board Secretariat at Affected Public: State of local (703) 697–8845. governments, Businesses of other for- OMB Desk Officer: Mr. Edward C. Springer Written comments and Patsy J. Conner, profit; Small businesses or Air Force Federal Register Liaison Officer. organizations recommendations on the proposed [FR Doc. 95–13843 Filed 6–6–95; 8:45 am] Frequency: Annually information collection should be sent Respondent’s Obligation: Voluntary to Mr. Springer at the Office of BILLING CODE 3910±01±P OMB Desk Officer: Mr. Matthew Management and Budget, Desk Officer Mitchell for DoD, Room 10236, New Executive Office Building, Washington, DC USAF Scientific Advisory Board Written comments and Meeting recommendations on the proposed 20503. information collection should be sent to DOD Clearance Officer: Mr. William The Materials Panel of the USAF Mr. Mitchell at the Office of Pearce. Scientific Advisory Board will meet on Management and Budget, Desk Officer Written requests for copies of the 6–7 July 1995 at Palo Alto, CA from 8:00 for DoD, Room 10202, New Executive information collection proposal should a.m. to 5:00 p.m. Office Building, Washington, DC 20503. be sent to Mr. Pearce, WHS/DIOR, 1215 The purpose of the meeting is to DOD Clearance Officer: Mr. William Jefferson Davis Highway, Suite 1204, gather data in support of the 1995 Pearce. Arlington, VA 22202–4302. Summer Study on New World Vistas. 30074 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices The meeting will be opened to the Department of the Army AAFES 0704.07 public in accordance with Section 552b of Title 5, United States Code, Privacy Act of 1974; Notice To Delete SYSTEM NAME: specifically subparagraphs (1) and (4) Systems of Records Fidelity Bond Files (February 22, thereof. AGENCY: Department of the Army, DOD. 1993, 58 FR 10020). For further information, contact the ACTION: Notice to delete systems of Reason: This system is obsolete. Scientific Advisory Board Secretariat at records. AAFES no longer requires fidelity (703) 697–8845. bonds. Records have been destroyed. Patsy J. Conner, SUMMARY: The Department of the Army proposes to delete six systems of records AAFES 1300.01 Air Force Federal Register Liaison Officer. notice in its existing inventory of record SYSTEM NAME: [FR Doc. 95–13840 Filed 6–6–95; 8:45 am] systems subject to the Privacy Act of BILLING CODE 3910±01±P 1974, (5 U.S.C. 552a), as amended. Resource Management and Cost DATES: The deletions are effective June Accounting Files (February 22, 1993, 58 7, 1995. FR 10022). USAF Scientific Advisory Board Reason: This system is obsolete. Meeting ADDRESSES: U.S. Army Information Systems Command, ATTN: ASOP-MP, Records have been destroyed. The Attack Panel of the USAF Fort Huachuca, AZ 85613–5000. [FR Doc. 95–13972 Filed 6–6–95; 8:45 am] Scientific Advisory Board will meet on FOR FURTHER INFORMATION CONTACT: Ms. BILLING CODE 5000±04±F 7–8 July 1995 at Beckman Center, Pat Turner at (602) 538–6856 or DSN 879–6856. Irvine, CA from 8:00 a.m. to 5:00 p.m. National Security Agency/Central SUPPLEMENTARY INFORMATION: The purpose of the meeting is to The Security Service Department of the Army systems of gather data in support of the 1995 records notices subject to the Privacy Summer Study on New World Vistas. Privacy Act of 1974; Notice To Amend Act of 1974, (5 U.S.C. 552a), as a Record System The meeting will be closed to the amended, have been published in the public in accordance with Section 552b Federal Register and are available from AGENCY: National Security Agency/ of Title 5, United States Code, the address above. Central Security Service, DOD. specifically subparagraphs (1) and (4) The deletions are not within the ACTION: Notice to amend a record thereof. purview of subsection (r) of the Privacy system. For further information, contact the Act of 1974, (5 U.S.C. 552a), as Scientific Advisory Board Secretariat at amended, which requires the SUMMARY: The National Security (703) 697–8845. submission of a new or altered system Agency/Central Security Service Patsy J. Conner, report. proposes to amend a system of records Dated: June 2, 1995. Air Force Federal Register Liaison Officer. notice in its inventory of record systems subject to the Privacy Act of 1974 (5 [FR Doc. 95–13842 Filed 6–6–95; 8:45 am] U.S.C. 552a), as amended. BILLING CODE 3910±01±P Patricia Toppings, DATES: The amendment will be effective Alternate OSD Federal Register Liaison on July 7, 1995, unless comments are USAF Scientific Advisory Board Officer, Department of Defense. received that would result in a contrary determination. Meeting AAFES 0307.01 ADDRESSES: Send comments to Deputy The USAF Scientific Advisory SYSTEM NAME: Director of Policy, National Security Board’s 1995 Summer Study Meeting Carpooling Program (February 22, Agency, 9800 Savage Road, Ft. Meade, will meet on 10–21 July 1995 at The 1993, 58 FR 10005). MD 20755–6000. Beckman Center, Irvine, CA from 0730 Reason: The carpooling program is no FOR FURTHER INFORMATION CONTACT: Ms. to 5:00 p.m. longer in effect. Records have been Pat Schuyler at (301) 688–6527. The purpose of the meeting is to destroyed. SUPPLEMENTARY INFORMATION: The produce a draft report, highlighting the AAFES 0403.05 National Security Agency/Central results of the Technology and Security Service notices for systems of SYSTEM NAME: Application panels in support of New records subject to the Privacy Act of World Vistas. Employee Examination Records 1974 (5 U.S.C. 552a), as amended, have The meeting will be closed to the (February 22, 1993, 58 FR 10007). been published in the Federal Register public in accordance with Section 552b Reason: This system is obsolete. and are available from the address of Title 5, United States Code, AAFES does not require employee above. examination tests. Records have been specifically subparagraphs (1) and (4) The proposed amendment is not destroyed. thereof. within the purview of subsection (r) of For further information, contact the AAFES 0408.05 the Privacy Act (5 U.S.C. 552a), as Scientific Advisory Board Secretariat at amended, which would require the SYSTEM NAME: (703) 697–8845. submission of a new or altered system Individual Trainee Files (February 22, report for each system. The specific Patsy J. Conner, 1993, 58 FR 10011). changes to the record system being Air Force Federal Register Liaison Officer. Reason: This system is obsolete and amended are set forth below followed [FR Doc. 95–13844 Filed 6–6–95; 8:45 am] no longer maintained by AAFES. by the notice, as amended, published in BILLING CODE 3910±01±P Records have been destroyed. its entirety. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30075 Dated: June 2, 1995. GNSA 08 ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND SYSTEM NAME: THE PURPOSES OF SUCH USES: Patricia L. Toppings, NSA/CSS Payroll and Claims. In addition to those disclosures Alternate OSD Federal Register Liaison SYSTEM LOCATION: generally permitted under 5 U.S.C. Officer, Department of Defense. 552a(b) of the Privacy Act, these records Primary System - National Security or information contained therein may Agency/Central Security Service, Ft. specifically be disclosed outside the GNSA 08 George G. Meade, MD 20755–6000. Decentralized elements of this system DoD as a routine use pursuant to 5 SYSTEM NAME: may be located at the Defense U.S.C. 552a(b)(3) as follows: NSA/CSS Payroll and Claims Intelligence Agency (DIA) Headquarters Disclosures from this system may also (February 22, 1993, 58 FR 10538). and DIA field elements, DoD activities be made to other federal entities as supported by DIA, and NSA field necessary to effectuate repayment of CHANGES: elements as authorized and appropriate. debts owed the Government. * * * * * For official mailing addresses for any of To other governmental entities in the decentralized system locations, connection with Social Security SYSTEM LOCATION: deductions, unemployment Delete second paragraph and replace write to the Deputy Director of Policy, National Security Agency/Central compensation claims, job-related injury with ‘Decentralized elements of this and death benefits, tax audit and system may be located at the Defense Security Service, Ft. George G. Meade, MD 20755–6000. collections, claims or actions. Intelligence Agency (DIA) Headquarters The ‘Blanket Routine Uses’ set forth at and DIA field elements, DoD activities CATEGORIES OF INDIVIDUALS COVERED BY THE the beginning of the NSA/CSS’ supported by DIA, and NSA field SYSTEM: compilation of systems of records elements as authorized and appropriate. Civilian employees and applicants, notices apply to this system. For official mailing addresses for any of military assignees, contractors, the decentralized system locations, reemployed annuitants, and personnel DISCLOSURES TO CONSUMER REPORTING AGENCIES: write to the Deputy Director of Policy, under contract or traveling on National Security Agency/Central invitational travel orders employed by Disclosures pursuant to 5 U.S.C. Security Service, Ft. George G. Meade, NSA/CSS, DIA, and DoD activities 552a(b)(12) may be made from this MD 20755–6000. supported by DIA system to ’consumer reporting agencies’ as defined in the Fair Credit Reporting CATEGORIES OF INDIVIDUALS COVERED BY THE CATEGORIES OF RECORDS IN THE SYSTEM: Act (15 U.S.C. 1681a (f) or the Federal SYSTEM: File may consist of records on time Claims Collection Act of 1966 (31 U.S.C. Delete entry and replace with and attendance; overtime; shift and 3701 (a) (3)). The purpose of this ‘Civilian employees and applicants, holiday work; absent without leave disclosure is to aid in the collection of military assignees, contractors, reports; payroll deductions, allotments outstanding debts owed to the Federal reemployed annuitants, and personnel and allowances; requests for leave; Government; typically, to provide an under contract or traveling on payments for travel performed in incentive for debtors to repay invitational travel orders employed by connection with permanent change of delinquent Federal Government debts NSA/CSS, DIA, and DoD activities station, temporary duty, invitations, by making these debts part of their supported by DIA.’ interviews, pre-employment interviews credit records. * * * * * and initial entry on duty. Also included Disclosure of records is limited to the are Pay Adjustment Authorizations (DD individual’s name, address, Social AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Form 139) and Cash Collection Security Number, and other information Delete entry and replace with Vouchers (DD Form 1131) and, in necessary to establish the individual’s ‘National Security Agency Act of 1959, connection with pay claims, waivers, identify, the amount, status, and history 50 U.S.C. 402 note (Pub. L. 86-36); 50 requests for waivers, documents, of the claim; and the agency program U.S.C. App. 2160; Titles 5, 10, 31, and correspondence, background data, under which the claim arose. This 37 of the U.S.C.; Titles 2, 4, 5, and 6 recommendations and decisions. disclosure will be made only after the GAO Policy and Procedures Manual for procedural requirement of 31 U.S.C. Guidance of Federal Agencies.’ AUTHORITY FOR MAINTENANCE OF THE SYSTEM: 3711(f) has been followed. National Security Agency Act of 1959, PURPOSE(S): 50 U.S.C. 402 note (Pub. L. 86-36); 50 POLICIES AND PRACTICES FOR STORING, Delete entry and replace with ‘To U.S.C. App. 2160; Titles 5, 10, 31, and RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: maintain effective control over and 37 of the U.S.C.; Titles 2, 4, 5, and 6 accountability for all relevant GAO Policy and Procedures Manual for STORAGE: appropriated funds; to provide Guidance of Federal Agencies. Paper records in file folders; file accounting data to support budget cards; computer paper printouts; requests and control the execution of PURPOSE(S): machine-readable cards; computer budgets; to provide financial To maintain effective control over and magnetic tapes, disks and other information required by the Office of accountability for all relevant computer storage media. Management and Budget; to provide appropriated funds; to provide financial information for agency accounting data to support budget RETRIEVABILITY: management and payroll activities.’ requests and control the execution of By name, Social Security Number. * * * * * budgets; to provide financial information required by the Office of SAFEGUARDS: SAFEGUARDS: Management and Budget; to provide For paper, computer printouts and Delete last sentence. financial information for agency microfilm - Secure limited access * * * * * management and payroll activities.’ facilities, within those facilities secure 30076 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices limited access rooms and within those EXEMPTIONS CLAIMED FOR THE SYSTEM: SUPPLEMENTARY INFORMATION: rooms lockable containers. Access to Individual records in this file may be A. Background information is limited to authorized exempt pursuant to 5 U.S.C. 552a(k)(1) individuals. For machine records stored and (k)(2), as applicable. The Department has recovered on magnetic tape, disk or other An exemption rule for this record $210,000 from the SEA in satisfaction of computer storage media within the system has been promulgated according claims arising from an audit of the LEA computer processing area - additional to the requirements of 5 U.S.C. covering fiscal year (FY) 1987. The secure limited access facilities, specific 553(b)(1), (2), and (3), (c) and (e) and claims involved the SEA’s processing requests from authorized published in 32 CFR part 322. For administration of Chapter 1 of the persons only, specific authority to additional information contact the Education Consolidation and access stored records and delivery to system manager. Improvement Act of 1981 (Chapter 1, authorized persons only. Remote [FR Doc. 95–13973 Filed 6–6–95; 8:45 am] ECIA), a program that provided terminals are secured, are available to BILLING CODE 5000±04±F financial assistance to State and local authorized persons only, and certain agencies to address the special password and other identifying educational needs of educationally information available to authorized DEPARTMENT OF EDUCATION deprived children in areas with high users only is required. concentrations of children from low- Intent To Repay to the Commonwealth income families. RETENTION AND DISPOSAL: of Pennsylvania Department of Specifically, the auditors found that Records are reviewed annually and Education Funds Recovered as a for the period July 1, 1986 through retired or destroyed as appropriate. Result of a Final Audit Determination March 18, 1987, the LEA’s Office of Permanent records are retired to the St. Planning, Research and Evaluation AGENCY: Department of Education. Louis Federal Records Center after (OPRE) prorated staff did not maintain completion of audit. Computer records ACTION: Notice of intent to award time and effort reports properly to are purged and updated consistent with grantback funds. support $604,611 of allocable charges these retention policies. under Chapter 1. Alternative SUMMARY: Under section 459 of the documentation in the form of sign-in SYSTEM MANAGER(S) AND ADDRESS: General Education Provisions Act sheets and evaluation reports was (GEPA), the U.S. Secretary of Education Director, National Security Agency/ reviewed by the auditors and also found (Secretary) intends to repay to the to be inadequate for allocating OPRE Central Security Service, Ft. George G. Commonwealth of Pennsylvania Meade, MD 20755–6000. salaries to Chapter 1 because it did not Department of Education, the State demonstrate the actual time that educational agency (SEA), an amount NOTIFICATION PROCEDURE: prorated staff spent on Chapter 1 equal to 75 percent of the $210,000 activities. The auditors therefore Individuals seeking to determine recovered by the U.S. Department of questioned $604,611 of salaries, fringe whether information about themselves Education (Department) as a result of a benefits, and indirect costs. is contained in this system should final audit determination. This notice On March 19, 1987, the LEA address written inquiries to the Deputy describes the SEA’s plan, submitted on implemented a time and effort reporting Director of Policy, National Security behalf of the Philadelphia School system to be used by the OPRE staff. Agency/Central Security Service, Ft. District, the local educational agency However, the auditors found that for the George G. Meade, MD 20755–6000. (LEA), for the use of the repaid funds period March 19, 1987 through June 30, and the terms and conditions under 1987, the time and effort reports RECORD ACCESS PROCEDURES: which the Secretary intends to make maintained by OPRE-prorated staff did those funds available. The notice invites Individuals seeking access to not support the full amount of Chapter comments on the proposed grantback. information about themselves contained 1 claims submitted by the LEA. The in this system should address written DATES: All comments must be received auditors therefore questioned an inquiries to the Deputy Director of on or before July 7, 1995. additional $20,066 improperly charged Policy, National Security Agency/ ADDRESSES: Comments concerning the to the Chapter 1 program for salaries, Central Security Service, Ft. George G. grantback should be addressed to Mary fringe benefits, and indirect costs for the Meade, MD 20755–6000. Jean LeTendre, Director, Compensatory remainder period of time. The auditors Education Programs, Office of recommended a total refund to the CONTESTING RECORD PROCEDURES: Elementary and Secondary Education, Department in the amount of $624,677 The NSA/CSS rules for contesting U.S. Department of Education, 600 for the first finding. contents and appealing initial Independence Avenue SW (Portals In a second finding, the auditors determinations are published at 32 CFR Building, Room 4400), Washington, D.C. found that the LEA failed to retain part 322 or may be obtained by written 20202–6132. documentation supporting student request addressed to the Deputy FOR FURTHER INFORMATION CONTACT: S. eligibility for the Chapter 1 Reading and Director of Policy, National Security Colene Nelson, U.S. Department of English to Speakers of Other Languages Agency/Central Security Service, Ft. Education, 600 Independence Avenue (ESOL) projects. Therefore, the teachers’ George G. Meade, MD 20755–6000. SW (Portals Building, Room 4400), salaries and fringe benefits charged to Washington, D.C. 20202–6132. the Chapter 1 program for the Reading RECORD SOURCE CATEGORIES: Telephone: (202) 260–0979. Individuals and ESOL projects during the period Forms, cards, requests and other who use a telecommunications device July 1, 1986 through June 30, 1987 were documentation submitted by for the deaf (TDD) may call the Federal unsupported. As a result, the auditors individuals, supervisors, claims officers, Information Relay Service (FIRS) at 1– identified $137,661 of Chapter 1 Personnel File data, Time, Attendance 800–877–8339 between 8 a.m. and 8 salaries, fringe benefits, and indirect and Access File data, and other sources p.m., Eastern time, Monday through costs charged to the Chapter 1 program, as appropriate and required. Friday. for the Reading and ESOL teachers, for Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30077 which student eligibility documentation the LEA for use of the grantback funds with the highest concentrations of could not be located. to meet the special educational needs of Chapter 1 program students will be Based on these two findings, the educationally deprived children in selected for participation. Attendance Assistant Secretary for Elementary and programs administered under Chapter 1, will be recorded at each staff Secondary Education (Assistant ESEA (20 U.S.C. 2701 et seq. (1988)). development session and participating Secretary) issued a final determination According to the plan, the LEA will teachers will complete a workshop on March 29, 1991, that concluded that use the grantback funds under Chapter evaluation survey at the end of the two- salaries, fringe benefits, and indirect 1 to provide six weeks of summer week session. costs charged to the Chapter 1 program kindergarten to be held at eight were unsupported or incorrectly schoolwide project sites, two classes per D. The Secretary’s Determinations calculated. The determination required site for a total of 16 classrooms. The Secretary has carefully reviewed a refund totaling $762,338. Participating teachers will attend one the plan submitted by the SEA. Based The SEA appealed the final planning meeting (2 hours) and a full upon that review, the Secretary has determination of the Assistant Secretary day of staff development (5 hours) in determined that the conditions under through the Office of Administrative June in preparation for the program that section 459 of GEPA have been met. Law Judges. Review of additional will begin for students on July 5 and These determinations are based upon documentation submitted during this end on August 15, 1995. The the best information available to the period of appeal and negotiations participating schools will be selected Secretary at the present time. If this between the school district and the based on the following two factors: (1) information is not accurate or complete, Department resulted in an order of A high concentration of students about the Secretary may take appropriate dismissal issued on April 15, 1992, by to enter first grade who have not had a administrative action. In finding that the the Department settling the audit at kindergarten experience, and (2) a high conditions of section 459 of GEPA have $210,000 in questioned costs. concentration of poverty. The Office of been met, the Secretary makes no Subsequently, on June 4, 1992, the LEA Accountability and Assessment will determination concerning any pending submitted a check for $210,000. identify the targeted schools. If space is audit recommendations or final audit available, children who entered determinations. B. Authority for Awarding a Grantback kindergarten after January 1995 will also Section 459(a) of GEPA, 20 U.S.C. be included. Teachers and classroom E. Notice of the Secretary’s Intent To 1234h(a), provides that whenever the assistants will telephone parents to keep Enter Into a Grantback Arrangement Secretary has recovered program funds attendance high. Section 459(d) of GEPA requires that, following a final audit determination, Each class will be staffed by a teacher at least 30 days before entering into an the Secretary may consider those funds and a classroom assistant. The teacher- arrangement to award funds under a to be additional funds available for the student ratio will be one to fifteen. The grantback, the Secretary must publish in program and may arrange to repay to the standardized kindergarten curriculum the Federal Register a notice of intent SEA or LEA affected by the for the LEA will be used as the basis for to do so, and the terms and conditions determination an amount not to exceed instruction. Schools will be invited to under which payment will be made. pilot some special materials to increase 75 percent of the recovered funds. The In accordance with section 459(d) of hands-on interactive, developmentally Secretary may enter into this grantback GEPA, notice is hereby given that the appropriate instruction. These materials arrangement if the Secretary determines Secretary intends to make funds will be selected by the principal and that— available to the SEA under a grantback teachers at the school to coordinate with (1) Practices or procedures of the SEA arrangement. The grantback award the instructional model in use at the or LEA that resulted in the audit would be in the amount of $157,500. determination have been corrected, and school. For the sixth week, the first the SEA or LEA is, in all other respects, grade teachers to whom the students F. Terms and Conditions Under Which in compliance with the requirements of have been assigned will attend and Payments Under a Grantback the applicable program; work with the students. The Early Arrangement Would Be Made (2) SEA has submitted to the Secretary Primary Progress Report (EPPR), a The SEA and LEA agree to comply a plan for the use of the funds to be developmentally appropriate with the following terms and conditions awarded under the grantback kindergarten checklist, will be under which payment under a grantback arrangement that meets the administered to each participant at the arrangement would be made: requirements of the program, and, to the completion of the summer program. (1) The funds awarded under the extent possible, benefits the population Children will be rated as competent, grantback must be spent in accordance that was affected by the failure to making progress, or making with— comply or by the misexpenditures that improvement. The results will be resulted in the audit exception; and summarized to determine attainment of (a) All applicable statutory and (3) Use of funds to be awarded under objectives for each class and the regulatory requirements; the grantback arrangement in program as a whole. (b) The plan that the SEA submitted accordance with the SEA’s plan would Also, the LEA staff, in consultation and any amendments to that plan that serve to achieve the purposes of the with nonpublic school authorities and are approved in advance by the program under which the funds were parents of Chapter 1 students, decided Secretary; and originally granted. to allocate grantback funds to support (c) The budget that was submitted summer professional development for with the plan and any amendments to C. Plan for Use of Funds Awarded 20 teachers of Chapter 1 students, in the budget that are approved in advance Under a Grantback Arrangement order to provide these teachers with an by the Secretary. Pursuant to section 459(a)(2) of GEPA, opportunity to focus on the needs of the (2) All funds received under the the SEA has applied for a grantback of Chapter 1 children they teach and to grantback arrangement must be $157,500—75 percent of the principal align the regular education program obligated by September 30, 1995, in amount recovered by the Department— with Chapter 1 support activities in accordance with section 459(c) of GEPA and has submitted a plan on behalf of their schools. Twenty nonpublic schools and the SEA’s plan. 30078 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices (3) The SEA, on behalf of the LEA, regulations for this program in 34 CFR (iv) The qualifications of key will, not later than December 31, 1995, Part 630. personnel who would conduct the submit a report to the Secretary that— project; and Priorities (a) Indicates that the funds awarded (v) The applicant’s relevant prior under the grantback have been spent in Invitational Priorities experience; accordance with the proposed plan and (3) The applicant and any other Under 34 CFR 75.105(c)(1) and 34 approved budget; and participating organizations are CFR 630.11(b)(1), the Secretary is (b) Describes the results and committed to the success of the particularly interested in applications effectiveness of the project for which the proposed project, as evidenced by, for that meet the following invitational funds were spent. example— priority. However, an application that (4) Separate accounting records must (i) Contribution of resources by the meets this invitational priority does not be maintained documenting the applicant and by participating receive competitive or absolute expenditures of funds awarded under organizations; preference over other applications. the grantback arrangement. (ii) Their prior work in the area; and Invitational Priority: Projects that (iii) The potential for continuation of Dated: June 1, 1995. support trilateral consortia of the proposed project beyond the period Thomas W. Payzant, institutions of higher education that of funding (unless the project would be Assistant Secretary for Elementary and promote institutional cooperation and self-terminating); and Secondary Education. student mobility among the United (4) The proposed project demonstrates (Catalog of Federal Domestic Assistance States, Mexico, and Canada. potential for dissemination to or adaptation by other organizations, and Number 84.010, Educationally Deprived Selection Criteria Children—Local Educational Agencies) shows evidence of interest by potential [FR Doc. 95–13850 Filed 6–6–95; 8:45 am] In evaluating applications for grants users. BILLING CODE 4000±01±P under this program competition, the (c) Appropriateness of funding Secretary uses the following selection projects. The Secretary reviews each criteria chosen from those listed in 34 application to determine whether [CFDA No. 84.116N] CFR 630.32: support of the proposed project by the Fund for the Improvement of (a) Significance for Postsecondary Secretary is appropriate in terms of Postsecondary EducationÐSpecial Education. The Secretary reviews each availability of other funding sources for Focus Competition: North American proposed project for its significance in the proposed activities. In accordance with 630.32 the Mobility in Higher Education improving postsecondary education by determining the extent to which it Secretary announces the methods that Notice inviting applications for new would— will be used in applying the selection awards for fiscal year (FY) 1995. (1) Achieve the purposes of the criteria. Purpose of Program: To provide grants particular program competition as The Secretary gives equal weight to or enter into cooperative agreements referenced in 34 CFR 630.11; the selection criteria on significance, to improve postsecondary education (2) Address the program priorities for feasibility, and appropriateness. Within opportunities by focusing on problem the particular program competition; each of these criteria, the Secretary gives areas or improvement approaches in (3) Address an important problem or equal weight to each of the subcriteria postsecondary education. need; listed above. In applying the criteria, the Secretary first analyzes a preapplication Supplemental Information: This (4) Represent an improvement upon, or application in terms of each program is a targeted special focus or important departure from, existing individual criterion and subcriterion. competition under 34 CFR 630.11(b). practice; The Secretary then bases the final Eligible Applicants: Institutions of (5) Involve learner-centered judgment of an application on an overall higher education or combinations of improvements; such institutions and other public and assessment of the degree to which the (6) Achieve far-reaching impact applicant addresses all selection private nonprofit educational through improvements that will be institutions and agencies. criteria. useful in a variety of ways and in a For Applications or Information Deadline for Transmittal of variety of settings; and Contact: Fund for the Improvement of Applications: July 31, 1995. (7) Increase the cost-effectiveness of Postsecondary Education (FIPSE), U.S. Deadline for Intergovernmental Review: services. Department of Education, 600 September 29, 1995. (b) Feasibility. The Secretary reviews Independence Avenue, S.W., Room Applications Available: June 7, 1995. each proposed project for its feasibility 3100, ROB–3, Washington, D.C. 20202– Available Funds: $1,200,000. by determining the extent to which— Estimated Range of Awards: $100,000– 5175. Telephone: (202) 708–5750 (1) The proposed project represents an between the hours of 8 a.m. and 5 p.m., $150,000 for three years. appropriate response to the problem or Estimated Average Size of Awards: Eastern time, Monday through Friday, to need addressed; order applications or for information. $120,000 for three years. (2) The applicant is capable of Estimated Number of Awards: 10. Individuals may request applications by carrying out the proposed project, as submitting the name of the competition, Note: The Department is not bound by any evidenced by, for example— their name, and postal mailing address estimates in this notice. (i) The applicant’s understanding of to the e-mail address [email protected]. Project Period: Up to 36 months. the problem or need; Individuals may obtain the application Applicable Regulations: (a) The (ii) The quality of the project design, text from Internet a ddress http:// Education Department General including objectives, approaches, and www.ed.gov/proglinfo/FIPSE/. Administrative Regulations (EDGAR) evaluation plan; Individuals who use a in 34 CFR Parts 74, 75 (except as (iii) The adequacy of resources, telecommunications device for the deaf noted in 34 CFR 630.4(a)(2)), 77, 79, including money, personnel, facilities, (TDD) may call the Federal Information 80, 82, 85, and 86; and (b) the equipment, and supplies; Relay Service (FIRS) at 1–800–877–8339 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30079 between 8 a.m. and 8 p.m., Eastern time, effective the earlier of July 10, 1995 or 5. Northern States Power Company Monday through Friday. the date of a Commission order granting (Minnesota Company) Information about the Department’s approval of this Rate Schedule. [Docket No. ER95–1057–000] funding opportunities, including copies IGI intends to engage in electric of application notices for discretionary power and energy transactions as a Take notice that on May 17, 1995, grant competitions, can be viewed on marketer and a broker. In transactions Northern States Power Company the Department’s electronic bulletin where IGI purchases power, including (Minnesota), (NSP-MIN), tendered for board (ED Board), telephone (202) 260– capacity and related services from filing an Electric Services Agreement 9950; or on the Internet Gopher Server electric utilities, qualifying facilities, dated February 28, 1994, between NSP- at GOPHER.ED.GOV (under and independent power producers, and MIN, Northern States Power Company Announcements, Bulletins, and Press resells such power to other purchasers, (Wisconsin), (NSP-WI), and the City of Releases). However, the official IGI will be functioning as a marketer. In Wisconsin Rapids. NSP-MIN files this application notice for a discretionary IGI’s marketing transactions, IGI agreement on behalf of NSP-WI, grant competition is the notice proposes to charge rates mutually Wisconsin Rapids and itself. published in the Federal Register. agreed upon by the parties. In The Electric Services Agreement Program Authority: 20 U.S.C. 1135–1135a– transactions where IGI does not take provides for the interchange of electrical 3. title to the electric power and/or energy, power and energy between the parties. Dated: May 31, 1995. IGI will be limited to the role of a broker NSP requests the Commission waive its David A. Longanecker, and will charge a fee for its services. IGI Part 35 Notice requirements and accept Assistant Secretary for Postsecondary is not in the business of producing nor this Agreement for filing effective July 1, Education. does it contemplate acquiring title to 1995. [FR Doc. 95–13851 Filed 6–6–95; 8:45 am] any electric power transmission Comment date: June 12, 1995, in BILLING CODE 4000±01±P facilities. accordance with Standard Paragraph E Rate Schedule No. 1 provides for the at the end of this notice. sale of energy and capacity at agreed- 6. New England Power Company DEPARTMENT OF ENERGY upon prices. Comment date: June 12, 1995, in [Docket No. ER95–1058–000] Federal Energy Regulatory accordance with Standard Paragraph E Take notice that on May 17, 1995, Commission at the end of this notice. New England Power Company filed a [Docket No. ER94±1188±005, et al.] 3a. Madison Gas and Electric Company Service Agreement and Certificate of Concurrence with Louis Dreyfus Electric [Docket No. ER95–1043–000] Power, Inc. For sales and exchanges LG&E Power Marketing Inc., et al.; Take notice that on May 15, 1995, Electric Rate and Corporate Regulation under NEP’s FERC Electric Tariff, Madison Gas and Electric Company Original Volume No. 5. Filings (MGE) tendered for filing a service Comment date: June 12, 1995, in agreement with NorAm Energy Services, May 30, 1995. accordance with Standard Paragraph E Inc., under MGE’s Power Sales Tariff. Take notice that the following filings at the end of this notice. have been made with the Commission: MGE requests an effective date 60 days from the filing date. 7. Sierra Pacific Power Company 1. LG&E Power Marketing Inc. Comment date: June 12, 1995, in [Docket No. ER95–1059–000] [Docket No. ER94–1188–005] accordance with Standard Paragraph E at the end of this notice. Take notice that on May 17, 1995, Take notice that on May 1, 1995, Sierra Pacific Power Company (Sierra), LG&E Power Marketing Inc. tendered for 4. CINergy Services, Inc., The tendered for filing pursuant to § 205 of filing certain information as required by Cincinnati Gas & Electric Company and the Federal Power Act (the Act) and Part the Commission’s order dated August PSI Energy, Inc. 35 of the Commission’s Regulations, 19, 1994. Copies of the informational [Docket No. ER95–1056–000] Amendment No. 1 to the General filing are on file with the Commission Take notice that on May 17, 1995, Transfer Agreement (GTA) between and are available for public inspection. CINergy Services, Inc., on behalf of The Sierra and Bonneville Power 2. ACME Power Marketing, Inc. Cincinnati Gas & Electric Company Administration (BPA). (Amendment No. (CG&E) and PSI Energy, Inc. (PSI) 1 shall hereafter be referred to as the [Docket No. ER94–1530–003] (together CINergy), filed, pursuant to Amendment). Take notice that on May 18, 1995, § 205 of the Federal Power Act and Part Sierra states that the purpose of the ACME Power Marketing, Inc. (ACME), 35 of the Commission’s Regulations, Amendment is to provide for increases filed certain information as required by Notices of Cancellation for CINergy in transmission service provided by the Commission’s October 18, 1994, Services to cancel the Interconnection Sierra under the existing GTA. The order in Docket No. ER94–1530–000. Agreement, dated September 1, 1970, as Amendment provides for various Copies of ACME’s informational filing amended, between CG&E and PSI. charges consistent with such increases are on file with the Commission and are CINergy Services has requested an in service. Sierra requests that the available for public inspection. effective date of October 24, 1994. Said Amendment be accepted and made 3. IGI Resources, Inc. date is the first day of operation of effective, without change, as of July 16, CINergy. 1995, that being 60 days after its tender [Docket No. ER95–1034–000] Copies of the filing were served on of filing at the Commission. While Take notice that on May 11, 1995, IGI CG&E, PSI and the state regulatory Sierra states its belief that no waivers of Resources, Inc., (IGI) tendered for filing commissions of Indiana, Ohio and the Act or the Commission’s Rules or a petition for waivers and blanket Kentucky. Regulations are necessary to make approvals under various regulations of Comment date: June 12, 1995, in effective the Amendment pursuant to its the Commission, and for an order accordance with Standard Paragraph E terms, Sierra requests any such waiver accepting its Rate Schedule No. 1, to be at the end of this notice. necessary or desirable for that purpose. 30080 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices Sierra asserts that the filing has been Century also has submitted (a) a 825 North Capitol Street, N.E., served on BPA and on the regulatory Notice of Cancellation of the Washington, D.C. 20426, in accordance commission of Nevada. Assumption Agreement as Century with Rules 211 and 214 of the Comment date: June 12, 1995, in FERC Rate Schedule No. 18 and of the Commission’s Rules of Practice and accordance with Standard Paragraph E Amended and Restated Interconnection Procedure (18 CFR 385.211 and 18 CFR at the end of this notice. Agreement as Century FERC Rate 385.214). All such motions or protests Schedule No. 17, and (b) a Notice of should be filed on or before the 8. Wisconsin Power and Light Company Cancellation of Service Agreement No. comment date. Protests will be [Docket No. ER95–1060–000] 25 under Century’s FERC Electric Tariff considered by the Commission in Take notice that on May 17, 1995, Original Volume No. 1. These rate determining the appropriate action to be Wisconsin Power and Light Company schedule cancellations are to become taken, but will not serve to make (WPL), tendered for filing a supplement effective coincident with the protestants parties to the proceeding. to the existing interconnection and assignments and amendments described Any person wishing to become a party interchange agreement between WPL above. must file a motion to intervene. Copies and Dairyland Power Cooperative. Comment date: June 12, 1995, in of this filing are on file with the WPL requests that an effective date accordance with Standard Paragraph E Commission and are available for public concurrent with the contract effective at the end of this notice. inspection. date be assigned. WPL states that copies 11. Public Service Company of New Lois D. Cashell, of the agreement and the filing have Mexico Secretary. been provided to Dairyland Power [Docket No. ER95–1068–000 New Mexico] [FR Doc. 95–13881 Filed 6–6–95; 8:45 am] Cooperative and the Wisconsin Public BILLING CODE 6717±01±P Service Commission. Take notice that on May 19, 1995, Comment date: June 12, 1995, in Public Service Company of New Mexico accordance with Standard Paragraph E (PNM) submitted for filing a copy of an [Docket No. CP95±509±000, et al.] at the end of this notice. Assignment and Assumption Agreement (Agreement) to be executed between Northwest Pipeline Corporation, et al.; 9. Florida Power & Light Company Century Power Corporation (Century) Natural Gas Certificate Filings and Tri-State Generation and [Docket No. ER95–1061–000] May 26, 1995. Transmission Association, Inc. (Tri- Take notice that on May 17, 1995, Take notice that the following filings State), in connection with Tri-State’s Florida Power & Light Company (FPL), have been made with the Commission: tendered for filing proposed Service intended purchase from Century of an Agreements with the Orlando Utilities interest in San Juan Generating Station 1. Northwest Pipeline Corporation Commission for transmission service Unit 3. PNM requests that the [Docket No. CP95–509–000] Agreement be effective the date of the under FPL’s Transmission Tariff Nos. 2 Take notice that on May 23, 1995, closing of the said purchase transaction and 3. Northwest Pipeline Corporation and that the Commission’s notice FPL requests that the proposed (Northwest), 295 Chipeta Way, Salt Lake Service Agreement be permitted to requirements be waived. Copies of this filing have been served City, Utah 84158, filed in Docket No. become effective on April 18, 1995, or upon Century, Tri-State, Tucson Electric CP95–509–000 a request pursuant to as soon thereafter as practicable. FPL Power Company and the New Mexico Sections 157.205, 157.216 and 157.211 states that this filing is in accordance Public Utility Commission. of the Commission’s Regulations under with Part 35 of the Commission’s Comment date: June 12, 1995, in the Natural Gas Act (18 CFR 157.205, Regulations. accordance with Standard Paragraph E 157.216, 157.211) for authorization to Comment date: June 12, 1995, in at the end of this notice. abandon certain facilities at the Moses accordance with Standard Paragraph E Lake Meter Station in Grant County, at the end of this notice. 12. Southwestern Public Service Washington and to construct and Company 10. Century Power Corporation operate replacement facilities at this [Docket No. ER95–1069–000] station to provide existing delivery [Docket No. ER95–1067–000] Take notice Southwestern Public obligations at this point to Cascade Take notice that on May 19, 1995, Service Company (Southwestern) on Natural Gas Corporation (Cascade) Century Power Corporation (Century), May 19, 1995, tendered for filing a under Northwest’s blanket certificate filed an Assignment and Amendment proposed amendment to its rate issued in Docket No. CP82–433–000 No. 2 to the Assumption Agreement and schedule for service to Central Valley pursuant to Section 7 of the Natural Gas an Assignment and Amendment No. 2 Electric Cooperative, Inc. (Central Act, all as more fully set forth in the to the Amended and Restated Valley). request that is on file with the Interconnection Agreement. Under these The proposed amendment reflects Commission and open to public agreements, Tucson provides step-up changes in the maximum commitment inspection. transformation, transmission, exchange at several delivery points as well as Northwest proposes to modify the and ancillary services to Century and adding an additional delivery point for Moses Lake Meter Station, originally Century’s permitted assignee for power service to Central Valley. certificated in Docket No. G–8934, by produced at San Juan Unit to Tri-State Comment date: June 12, 1995, in replacing the two existing 4-inch orifice Generation and Transmission accordance with Standard Paragraph E meters with two new 6-inch turbine Association, Inc., and the filed at the end of this notice. meters and appurtenances to assignments and amendments transfer accommodate wide flow rate to Tri-State rights to service under the Standard Paragraphs: fluctuations. Northwest also proposes to agreements. The assignments and E. Any person desiring to be heard or install a new 750,000 Btu heater and amendments are to become effective to protest said filing should file a electronic flow measurement upon the closing of the sale of the motion to intervene or protest with the equipment. Northwest states that the interest in the unit. Federal Energy Regulatory Commission, proposed modifications will not affect Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30081 the design capacity of the meter station approximately 425 Dt per day at a town border station, located in St. Croix which is limited by existing regulators pressure of 400 psig. County, Wisconsin, under the blanket to 9,300 Dth per day at 300 psig. Northwest has estimated the cost of certificate issued in Docket No. CP82– Northwest estimates the total cost of the proposed facility upgrade at the 401–000, pursuant to Section 7(c) of the the proposed facility modification at the Winlock Meter Station to be Natural Gas Act, all as more fully set Moses Lake Meter Station to be approximately $59,446 which includes forth in the request which is on file with approximately $312,350, including the the cost of removing the old facilities. the Commission and open to public cost of removing the old facilities. Northwest avers that since this inspection. Northwest states that it will not require expenditure is necessary in order for Northern states that NSP–W has any cost reimbursement from Cascade. Northwest to accommodate existing requested the upgrade of the delivery Comment date: July 10, 1995, in MDDO’s at the Winlock Meter Station, point to accommodate growth of gas accordance with Standard Paragraph G Northwest will not require any cost requirements in this area. Northern at the end of this notice. reimbursement from Washington asserts that the proposed peak day 2. Northwest Pipeline Corporation Natural. volumes will increase from 8,500 Mcf to Comment date: July 10, 1995, in 12,000 Mcf and the annual volumes will [Docket No. CP95–510–000] accordance with Standard Paragraph G increase from 1,100,000 Mcf to Take notice that on May 23, 1995, at the end of this notice. 2,444,000 Mcf and will be used for Northwest Pipeline Corporation residential, commercial and industrial (Northwest), 295 Chipeta Way, Salt Lake Standard Paragraphs consumption. Northern claims that the City, Utah 84108, filed in Docket No. G. Any person or the Commission’s deliveries of the estimated volumes to CP95–510–000 a request pursuant to staff may, within 45 days after issuance NSP–W at the upgraded delivery point Sections 157.205, 157.211, and 157.216 of the instant notice by the Commission, will be made pursuant to Northern’s of the Commission’s Regulations under file pursuant to Rule 214 of the currently effective throughput service the Natural Gas Act (18 CFR 157.205, Commission’s Procedural Rules (18 CFR agreements with NSP–W. 157.211, and 157.216) for authorization 385.214) a motion to intervene or notice Northern estimates that the proposed to replace certain obsolete and of intervention and pursuant to Section cost to upgrade the delivery point is undersized facilities at its Winlock 157.205 of the Regulations under the $181,000 and NSP–W will reimburse Meter Station in Lewis County, Natural Gas Act (18 CFR 157.205) a Northern for the cost of upgrading the Washington, in order to better protest to the request. If no protest is delivery point. accommodate its existing firm filed within the time allowed therefor, Northern states that the delivery of maximum daily delivery obligations the proposed activity shall be deemed to NSP–W’s volumes will impact (MDDO) to Washington Natural Gas be authorized effective the day after the Northern’s peak day and annual Company (Washington Natural), under time allowed for filing a protest. If a deliveries. Northern claims that the total Northwest’s blanket certificate issued in protest is filed and not withdrawn volumes to be delivered to the customer Docket No. CP82–433–000 pursuant to within 30 days after the time allowed after the request do not exceed the total Section 7 of the Natural Gas Act, all as for filing a protest, the instant request volumes authorized prior to the request. more fully set forth in the request that shall be treated as an application for Northern claims that the proposed is on file with the Commission and open authorization pursuant to Section 7 of activity is not prohibited by its existing to public inspection. the Natural Gas Act. tariff and that it has sufficient capacity Northwest states that it presently has to accommodate the proposed changes Lois D. Cashell, firm obligations to deliver up to a total without detriment to Northern’s other of 400 Dt per day (at 400 psig) under Secretary. customers. Rate Schedule TF–1, to Washington [FR Doc. 95–13880 Filed 6–6–95; 8:45 am] Comment date: July 14, 1995, in Natural at the Winlock delivery point. BILLING CODE 6717±01±P accordance with Standard Paragraph G Northwest further states that the at the end of this notice. Winlock Meter Station has a maximum [Docket No. CP95±514±000, et al.] 2. Questar Pipeline Company design delivery capacity of approximately 280 Dt per day (at 400 Northern Natural Gas Company, et al.; [Docket No. CP95–520–000] psig). Since the maximum design Natural Gas Certificate Filings Take notice that on May 25, 1995, capacity of the Winlock Meter Station is Questar Pipeline Company (Questar), 79 less then Northwest’s firm delivery May 30, 1995 South State Street, Salt Lake City, Utah obligation to Washington Natural, Take notice that the following filings 84111, filed in Docket No. CP95–520– Northwest is proposing to upgrade the have been made with the Commission: 000 a request pursuant to Sections Winlock Meter Station by replacing the 1. Northern Natural Gas Company 157.205 and 157.216 of the two existing undersized 1-inch Commission’s Regulations under the regulators with two new 1-inch [Docket No. CP95–514–000] Natural Gas Act (18 CFR 157.205 and regulators, with 1/4-inch trim; and by Take notice that on May 24, 1995, 157.216) for permission and approval to replacing the obsolete 2-inch positive Northern Natural Gas Company abandon a 12-inch meter run and a 12- displacement meter with one new 2- (Northern), P.O. Box 3330, Omaha, inch meter located within the confines inch turbine meter and one new 2-inch Nebraska 68103–0330, filed in Docket of Questar’s jurisdictional Bonanza Roots meter and appurtenances. No. CP95–514–000 a request pursuant to Measuring and Regulating Station Northwest states that it is installing two Sections 157.205 and 157.212 of the (Bonanza M&R) in Uintah, Utah. replacement meters in order to more Commission’s Regulations under the Questar makes such request under its accurately measure the high and low Natural Gas Act (18 CFR 157.205 and blanket certificates issued in Docket No. flows through the meter station. It is 157.212) for authorization to upgrade an CP82–491–000, pursuant to Section 7 of stated that the proposed facility upgrade existing delivery point to accommodate the Natural Gas Act, all as more fully set will increase the maximum design increased natural gas deliveries to forth in the request which is on file with delivery capacity of the Winlock Meter Northern States Power—Wisconsin the Commission and open to public Station from 280 Dt per day to (NSP–W), for delivery at the Hudson inspection. 30082 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices Questar is proposing to abandon, by authorized prior to this request. It is and 214 of the Commission’s Rules of removal, a 12-inch meter run further indicated that the one Mcf per Practice and Procedure (18 CFR 385.211 comprising approximately 40 feet of day of peak service requested is within and 18 CFR 385.214). All such motions 123⁄4-inch diameter pipe and a 12 inch the entitlement of Equitable. Equitrans or protests should be filed on or before meter located at Questar’s Bonanza M&R states that the new delivery tap will not June 8, 1995. Protests will be considered in Section 30, Township 9 South, Range impact its peak day and annual by the Commission in determining the 25 East, Uintah County, Utah. Questar deliveries. Equitrans further state that it appropriate action to be taken, but will explains that it has been 11 years since has sufficient capacity to accomplish not serve to make protestants parties to the Bonanza 12-inch meter run was last the deliveries without detriment to its the proceeding. Any person wishing to utilized as a custody-transfer point. other customers. become a party must file a motion to Questar states that it proposes to remove Comment date: July 14, 1995, in intervene. Copies of this filing are on the 12-inch meter run to provide space accordance with Standard Paragraph G file with the Commission and are for the installation of a 100-barrel slug at the end of this notice. available for public inspection. catcher required for the removal of Standard Paragraphs: Lois D. Cashell, liquids from Questar’s Main Line No. Secretary. 68. Questar states that the total G. Any person or the Commission’s [FR Doc. 95–13855 Filed 6–6–95; 8:45 am] investment associated with the Bonanza staff may, within 45 days after issuance 12-inch meter run proposed to be of the instant notice by the Commission, BILLING CODE 6717±01±M abandoned is $8,575. file pursuant to Rule 214 of the Comment date: July 14, 1995, in Commission’s Procedural Rules (18 CFR accordance with Standard Paragraph G 385.214) a motion to intervene or notice [Docket Nos. CP94±342±001 and MT95±11± at the end of this notice. of intervention and pursuant to Section 000] 157.205 of the Regulations under the 3. Equitrans, Inc. Crossroads Pipeline Co.; Notice of Natural Gas Act (18 CFR 157.205) a Initial Tariff Filing [Docket No. CP95–523–000] protest to the request. If no protest is Take notice that on May 25, 1995, filed within the time allowed therefor, June 1, 1995. Equitrans, Inc. (Equitrans), 3500 Park the proposed activity shall be deemed to Take notice that on May 19, 1995, Lane, Pittsburgh, Pa 15275, filed in be authorized effective the day after the Crossroads Pipeline Company Docket No. CP95–523–000 a request time allowed for filing a protest. If a (Crossroads), 801 East 86th Avenue, pursuant to Sections 157.205 and protest is filed and not withdrawn Merrillville, Indiana 46410, filed in 157.212 of the Commission’s within 30 days after the time allowed Docket Nos. CP94–342–001 and MT95– Regulations under the Natural Gas Act for filing a protest, the instant request 11–000 its FERC Gas Tariff, Original (18 CFR 157.205, and 157.212) for shall be treated as an application for Volume No. 1, with a proposed effective approval to construct and operate a authorization pursuant to Section 7 of date of June 1, 1995. delivery tap located in the City of the Natural Gas Act. Waynesburg, Pa for delivery of natural Lois D. Cashell, Crossroads states that the initial tariff gas to Equitable Gas Company filing reflects the modifications made in Secretary. (Equitable), an affiliate, for redelivery to the pro forma tariff and rates appended its customer, Ralph D. Black, an [FR Doc. 95–13882 Filed 6–6–95; 8:45 am] to Crossroads’ original certificate individual, under the blanket certificate BILLING CODE 6717±01±P application in compliance with the issued in Docket No. CP83–508–000 and Commission’s April 21, 1995, order transferred to Equitrans in Docket No. [Docket No. ER95±571±000] granting Crossroads its certificate in CP86–676–000, pursuant to Section 7(c) Docket No. CP94–342–000, 71 FERC of the Natural Gas Act (NGA), all as Central Vermont Public Service Corp.; ¶61,076. more fully set forth in the request which Notice of Filing Any person desiring to be heard or to is on file with the Commission and open protest the subject filing should file a to public inspection. June 1, 1995. Take notice that on April 10, 1995, motion to intervene or protest with the Equitrans proposes to construct a Federal Energy Regulatory Commission, delivery tap on its transmission line F– Central Vermont Public Service Corporation (Central Vermont) tendered 825 North Capitol Street, NE., 119 in the City of Waynesburg, Washington, DC 20426, in accordance Pennsylvania. Equitrans indicates that it for filing additional supporting cost data to its Transformer Joint Ownership with sections 385.211 and 385.214 of will charge Equitable the applicable the Commission’s Rules of Practice and transportation rate contained in Agreement. Central Vermont requests the Procedure: 18 CFR 385.211 and 385.214. Equitrans’ FERC Gas Tariff on file and All such motions and protests should be approved by the Commission. Equitrans Commission to waive its notice of filing filed on or before June 12, 1995. Protests further indicates that it will offer the requirement to permit the amendment will be considered by the Commission proposed service within the existing to become effective on the in-service in determining the appropriate action to certificated transportation entitlement of date of the transformer. In support of its be taken, but will not serve to make Equitable under Equitrans’ Rate request Central Vermont states that protestants parties to the proceeding. Schedule FTS. Equitrans states that its allowing the Service Agreement to Any person wishing to become a party tariff does not prohibit this type of become effective as provided will must file a motion to intervene. Copies service. enable the Company and its customers Equitrans projects that the quantity of to achieve mutual benefits. of this filing are on file with the gas to be delivered through the Any person desiring to be heard or to Commission and are available for public proposed delivery tap will be protest said filing should file a motion inspection. approximately one Mcf on a peak day. to intervene or protest with the Federal Lois D. Cashell, It is indicated that the total volumes to Energy Regulatory Commission, 825 Secretary. be delivered to Equitable after this North Capitol Street, NE., Washington, [FR Doc. 95–13854 Filed 6–6–95; 8:45 am] request do not exceed the total volumes DC 20426, in accordance with Rules 211 BILLING CODE 6717±01±M Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30083 [Project No. 1986 Oregon] [Project No. 2931, Maine] Church, Virginia, for access to information which has been submitted Oregon Trail Electric Consumers S. D. Warren Co.; Notice of Intent To to EPA under sections 4, 5, 6, 8, and 21 Cooperative Inc.; Notice Soliciting File an Application for a New License of the Toxic Substances Control Act Applications June 1, 1995. (TSCA). Some of the information may be claimed or determined to be June 1, 1995. Take notice that the S. D. Warren Company, the existing licensee for the confidential business information (CBI). On July 1, 1991, Oregon Trail Electric Gambo Power Station, Project No. 2931, DATES: Access to the confidential data Consumers Inc., licensee for the Rock filed a timely notice of intent to file an submitted to EPA will occur no sooner Creek Hydroelectric Project No. 1986, application for a new license, pursuant than June 21, 1995. filed a notice of intent to file an to 18 CFR 16.6 of the Commission’s FOR FURTHER INFORMATION CONTACT: application for a new license, pursuant Regulations. The original license for Susan B. Hazen, Director, TSCA to Section 15(b)(1) of the Federal Power Project No. 2931 was issued effective Environmental Assistance Division Act (Act). The original license for April 1, 1962, and expires April 31, (7408), Office of Pollution Prevention Project No. 1986 was issued effective 2000. and Toxics, Environmental Protection June 30, 1946, and expires June 29, The project is located on the Agency, Rm. E–545, 401 M St., SW., 1996. The project occupies 6.29 acres of Presumpscot River in Cumberland Washington, DC 20460, (202) 554–1404, lands of the United States within the County, Maine. The principal works of TDD: (202) 554–0551. Whitman National Forest. the Gambo Project include a 250-foot- SUPPLEMENTARY INFORMATION: Under The project is located on the Rock long, 24-foot-high concrete overflow contract number 68–D5–0012, Creek, a tributary of the Powder River, dam; a reservoir with a normal water contractor SRC of Merrill Lane, in Baker County, Oregon. The principal surface elevation of 138.8 feet m.s.l.; a Syracuse, NY 13210 and its structure with sluice gates; a 15-foot- project works consist of: (a) a low subcontractor SRA of 8110 Gatehouse deep, 737-foot-long concrete lined concrete diversion dam; (b) a 8,800-foot- Rd., Suite 600, Falls Church, VA 22042 canal; a concrete and brick powerhouse long flume; (c) a regulating forebay of will assist the Office of Pollution containing two 950-Kw generators; Prevention and Toxics (OPPT) in about 7-acre-feet; (d) a 2,720-foot-long generator leads, step-up transformer, penstock; (e) a powerhouse with a total performing hazard and exposure and an eight-mile-long transmission assessments, risk assessments, installed capacity of 800 kW; (f) a line; and appurtenant facilities. transmission line; and (g) appurtenant organizing review panels and Pursuant to 18 CFR 16.7, the licensee workgroups, and assisting in developing facilities. is required henceforth to make available test guidelines and standards. The licensee did not file an certain information to the public. This In accordance with 40 CFR 2.306(j), application for new license which was information is now available from the EPA has determined that under EPA due by June 29, 1994. Pursuant to licensee at 89 Cumberland Street, P.O. contract number 68–D5–0012, SRC and Section 16.25 of the Commission’s Box 5000, Westbrook, Maine 04098– SRA will require access to CBI Regulations, the Commission is 1597. submitted to EPA under sections 4, 5, 6, soliciting applications from potential Pursuant to 18 CFR 16.8, 16.9 and 8, and 21 of TSCA to perform applicants other than the existing 16.10, each application for a new successfully the duties specified under licensee. This is necessary because the license and any competing license the contract. Some of the information deadline for filing an application for applications must be filed with the may be claimed or determined to be new license and any competing license Commission at least 24 hours prior to CBI. the expiration of the existing license. applications, pursuant to Section 16.20 EPA is issuing this notice to inform All applications for license for this of the regulations, was June 29, 1994, all submitters of information under project must be filed by August 31, and no other applications for license for sections 4, 5, 6, 8, and 21 of TSCA that 1998. this project were filed. EPA may provide SRC and SRA access Lois D. Cashell, to these CBI materials on a need-to- Pursuant to § 16.19 of the Secretary. know basis only. Access to TSCA CBI Commission’s Regulations, the licensee [FR Doc. 95–13852 Filed 6–6–95; 8:45 am] will take place at EPA Headquarters, at is required to make available certain BILLING CODE 6717±01±M SRC’s site at 1745 Jefferson Davis information described in Section 16.7 of Highway, Arlington, VA and at SRA’s the regulations. Such information is Falls Church, VA site. The EPA TSCA available from the licensee at 3275 ENVIRONMENTAL PROTECTION Security Staff has inspected SRC’s Baker Street, Baker City, OR 97814. AGENCY facility and has determined that the A potential applicant that files a facility is in compliance with the TSCA [OPPTS±140232; FRL±4953±4] notice of intent within 90 days from the Confidential Business Information date of issuance of this notice: (1) may Syracuse Research Corporation and Security Manual. The EPA TSCA apply for a license under part I of the SRA Technologies, Inc.; Access to Security Staff will also perform the Act and part 4 (except Section 4.38) of Confidential Business Information required inspection of SRA’s facility, the Commission’s Regulations within 18 and ensure that the facility is in months of the date on which it files its AGENCY: Environmental Protection compliance with the manual. notice; and (2) must comply with the Agency (EPA). Clearance for access to TSCA CBI requirements of Section 16.8 of the ACTION: Notice. under this contract may continue until Commission’s Regulations. January 31, 2000. SUMMARY: EPA has authorized its SRC and SRA personnel will be Lois D. Cashell, contractor, Syracuse Research required to sign nondisclosure Secretary. Corporation (SRC) of Syracuse, New agreements and will be briefed on [FR Doc. 95–13853 Filed 6–6–95; 8:45 am] York, and SRC’s subcontractor, SRA appropriate security procedures before BILLING CODE 6717±01±M Technologies, Inc. (SRA) of Falls they are permitted access to TSCA CBI. 30084 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices List of Subjects notice of receipt of request for provides that, before acting on the Environmental protection, Access to amendment by registrants to delete uses request, EPA must publish a notice of confidential business information. in certain pesticide registrations. receipt of any such request in the Dated: May 8, 1995. DATES: Unless a request is withdrawn, Federal Register. Thereafter, the the Agency will approve these use Administrator may approve such a George A. Bonina, deletions and the deletions will become request. Acting Director, Information Management effective on September 5, 1995. II. Intent to Delete Uses Division, Office of Pollution Prevention and FOR FURTHER INFORMATION CONTACT: By Toxics. mail: James A. Hollins, Office of This notice announces receipt by the [FR Doc. 95–13962 Filed 6–6–95; 8:45 am] Pesticide Programs (7502C), Agency of applications from registrants BILLING CODE 6560±50±F Environmental Protection Agency, 401 to delete uses in the 26 pesticide M St., SW., Washington, DC 20460. registrations listed in the following Office location for commercial courier Table 1. These registrations are listed by [OPP±34077; FRL 4956±2] delivery and telephone number: Room registration number, product names, Notice of Receipt of Requests for 216, Crystal Mall No. 2, 1921 Jefferson Davis Highway, Arlington, VA, (703) active ingredients and the specific uses Amendments to Delete uses in Certain deleted. Users of these products who Pesticide Registrations 305–5761; e-mail: [email protected]. desire continued use on crops or sites being deleted should contact the AGENCY: Environmental Protection SUPPLEMENTARY INFORMATION: Agency (EPA). applicable registrant before September I. Introduction 5, 1995 to discuss withdrawal of the ACTION: Notice. Section 6(f)(1) of FIFRA provides that applications for amendment. This 90– SUMMARY: In accordance with section a registrant of a pesticide product may day period will also permit interested 6(f)(1) of the Federal Insecticide, at any time request that any of its members of the public to intercede with Fungicide, and Rodenticide Act pesticide registrations be amended to registrants prior to the Agency approval (FIFRA), as amended, EPA is issuing a delete one or more uses. The Act further of the deletion. TABLE 1.ÐREGISTRATIONS WITH REQUESTS FOR AMENDMENTS TO DELETE USES IN CERTAIN PESTICIDE REGISTRATIONS EPA Reg No. Product Name Active Ingredient Delete From Label 000279±03014 Pounce 3.2 EC Insecticide Permethrin, mixed CIS, Cotton, pears (summer use only), trans fennel, mushrooms, sweet corn (fresh market use in FL) 000279±03051 Pounce 25 WP Insecticide Permethrin, mixed CIS, Cotton, pears (summer use only), trans fennel, mushrooms, sweet corn (fresh market use in FL) 000279±03083 Pounce WSB Insecticide Permethrin, mixed CIS, Cotton, pears (summer use only, trans fennel, mushrooms, sweet corn (fresh market use in FL) 000352±00400 Oxamyl Technical 42 Oxamyl Ornamental uses 000499±00367 Whitmire PT 275 Dur-O-Cap Microencapsulated Chlorpyrifos Indoor pest control Chlorpyrifor Liquid Concentrate 002217±00765 Embark 1±L Plant Growth Regulator Potassium mefluidide Highway rights-of-way, utility rights- of-way, roads 002548±00027 Max Kill Malathion 57±WE Malathion Sunflower seed storage & process- ing facilities, vegetables grown in commercial greenhouses (cu- cumbers, endive, lettuce, radish, tomatoes, watercress), hogs, sheep, goats, horses, beef non- milking cattle, poultry (chicken ducks, geese, turkeys), domestic pets (dogs & cats), plants proc- essing dry milk, crack & crevice treatment in food handling estab- lish ments (food areas & non- food areas) 002724±00340 Zoecon RF±256 Aerosol Propetamphos Food processing (mills dairies), meat & poultry plants, food pack- ing (canning, bottling), food and/ or feed warehouses 004816±00628 PY-SY Concentrate Pyrethrins, Resmethrin Greenhouses 005549±00049 Cythion 5±EC Stored grains, grains going into storage, residual storage treat- ments, indoor uses, pet & do- mestic animal uses 007501±00029 Lorsban 50 SL Seed Treatment Chlorpyrifos Field corn use against soil insects Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30085 TABLE 1.ÐREGISTRATIONS WITH REQUESTS FOR AMENDMENTS TO DELETE USES IN CERTAIN PESTICIDE REGISTRATIONSÐContinued EPA Reg No. Product Name Active Ingredient Delete From Label 007501±00031 Lorsban 30 Flowable Chlorpyrifos Field corn use against soil insects 010182±00018 Ambush Insecticide Permethrin, mixed CIS, Cotton, pears (summer use only, trans fennel, mushrooms, sweet corn (fresh market use in FL) 010182±00035 Ambush 25W Insecticide Permethrin, mixed CIS, Cotton, pears (summer use only, trans fennel, mushrooms, sweet corn (fresh market use in FL) 010182±00110 Ambush 25W Insecticide, Water Soluble Packet Permethrin, mixed CIS, Cotton, pears (summer use only, trans fennel, mushrooms, sweet corn (fresh market use in FL) 010182±00152 EPTAM 6±E Selective Herbicide EPTC Table beets flax, sweet potatoes, green peas 010182±00155 EPTAM 5±G Selective Herbicide EPTC Sweet potatoes 010182±00160 EPTAM 10±G Selective Herbicide EPTC Table beets, flax 010182±00199 EPTAM 20±G Selective Herbicide EPTC Table beets & flax 010182±00220 MPTAM 7±E Selective Herbicide EPTC Table beets, flax, sweet Potatoes, green peas 010370±00064 Ford's Dursban Insecticide Concentrate Chlorpyrifos Broad area mosquito control 010370±00256 Ford's Malathion 57% EC Malathion All vegetable crops, fruit & nut crops, vegetables grown in com- mercial greenhouses, field crops, pasture & range grasses, stored almonds, stored peanuts 045728±00024 UCB Thiram 65 WP Thiram Dust application on apples and strawberries 051036±00152 Chlorpyrifos 2E Chlorpyrifos Mosquito use 051036±00154 Chlorpyrifos 4E Chlorpyrifos Mosquito use 067517±00002 Purina Malathion Spray Malathion Buildings, poultry, poultry ranges, beef cattle, horses, hogs, sheep, goats, sugar beet tops, soy- beans, stored grain (rice, grain sorghum, field or garden seed, wheat, oats, corn rye, barley), boxcars (packaged cereals, pet foods, bagged flour, feedstuffs), dogs & cats, cauliflower, beets, apples, peaches, cherries, plums pears, pecan, grapes, ornamen- tal shrubs, grains going into stor- age, stored grain surfaces, mel- ons The following Table 2 includes the names and addresses of record for all registrants of the products in Table 1, in sequence by EPA company number. TABLE 2.ÐREGISTRANTS REQUESTING AMENDMENTS TO DELETE USES IN CERTAIN PESTICIDE REGISTRATIONS Com- pany No. Company Name and Address 000279 FMC Corp., Agricultural Chemical Group, 1735 Market St., Philadelphia, PA 19103. 000352 DuPont Agricultural Products, Walker's Mill, Barley Mill Plaza, P.O. Box 80038, Wilmington, DE 19880. 000499 Whitmire Research Laboratories Inc., 3568 Tree Court Industrial Blvd., St. Louis, MO 63122. 002217 PBI/Gordon Corp., P.O. Box 014090, 1217 West 12th St., Kansas City, MO 64101. 002548 Research Products Co., Div. of McShares, Inc., 1835 E. North St., P.O. Box 1460, Salina, KS 67402. 002724 Sandoz Agro, Inc., 1300 E. Touhy Ave., Des Plaines, IL 60018. 004816 Roussel Uclaf Corp., 95 Chestnut Ridge Road, Montvale, NJ 07645. 005549 Coastal Chemical Corp., P.O. Box 856, Greenville, NC 27834. 007501 Gustafson, Inc., P.O. Box 660065, Dallas, TX 75266. 010182 Zeneca Ag Products, P.O. Box 15458, Wilmington, DE 19850. 30086 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices TABLE 2.ÐREGISTRANTS REQUESTING AMENDMENTS TO DELETE USES IN CERTAIN PESTICIDE REGISTRATIONSÐ Continued Com- pany No. Company Name and Address 010370 Agrevo Environmental Health, 95 Chestnut Ridge Road, Montvale, NJ 07645. 045728 UCB Chemicals Corp., c/o Compliance Services International, 2001 Jefferson Davis Hwy., Suite 1010, Arlington, VA 22202. 051036 Micro Flo Co., P.O. Box 5948, Lakeland, FL 33807. 067517 PM Resources, Inc., 13001 St. Charles Rock Rd., Bridgeton, MO 63044. III. Existing Stocks Provisions Number of Petition Filed: 1 you find necessary for Federal disaster Subject: Amendment of Section assistance and administrative expenses. The Agency has authorized registrants You are authorized to provide Individual to sell or distribute product under the 73.202(b), Table of Assignments, FM Broadcast Stations. (Chatom, Assistance in the designated areas. Public previously approved labeling for a Assistance may be added at a later date, if period of 18 months after approval of Alabama) requested and warranted. Consistent with the the revision, unless other restrictions Number of Petition Filed: 1. requirement that Federal assistance be have been imposed, as in special review Federal Communication Commission. supplemental, any Federal funds provided actions. LaVera F. Marshall, under the Stafford Act for Public Assistance will be limited to 75 percent of the total Acting Secretary. eligible costs. List of Subjects [FR Doc. 95–13860 Filed 6–6–95; 8:45 am] The time period prescribed for the Environmental protection, Pesticides BILLING CODE 6712±01±M and pests, Product registrations. implementation of section 310(a), Priority to Certain Applications for Dated: May 25, 1995. Public Facility and Public Housing FEDERAL EMERGENCY Assistance, 42 U.S.C. 5153, shall be for Daniel M. Barolo, MANAGEMENT AGENCY Director, Office of Pesticide Programs. a period not to exceed six months after [FEMA±1053±DR] the date of this declaration. [FR Doc. 95–13786 Filed 6–6–95; 8:45 am] Notice is hereby given that pursuant BILLING CODE 6560±50±F Illinois; Major Disaster and Related to the authority vested in the Director of Determinations the Federal Emergency Management Agency under Executive Order 12148, I AGENCY: Federal Emergency FEDERAL COMMUNICATIONS hereby appoint Phil Zaferopulos of the Management Agency (FEMA). COMMISSION Federal Emergency Management Agency ACTION: Notice. to act as the Federal Coordinating [Report No. 2076] SUMMARY: This is a notice of the Officer for this declared disaster. June 2, 1995. Presidential declaration of a major I do hereby determine the following areas of the State of Illinois to have been Petition for Reconsideration of Actions disaster for the State of Illinois (FEMA– affected adversely by this declared in Rulemaking Proceedings 1053–DR), dated May 30, 1995, and related determinations. major disaster: Petition for reconsideration has been EFFECTIVE DATE: May 30, 1995. The counties of Madison and St. Clair for filed in the Commission rulemaking Individual Assistance. proceedings listed in this Public Notice FOR FURTHER INFORMATION CONTACT: (Catalog of Federal Domestic Assistance No. and published pursuant to 47 CFR Pauline C. Campbell, Response and 83.516, Disaster Assistance) 1.429(e). The full text of this document Recovery Directorate, Federal James L. Witt, is available for viewing and copying in Emergency Management Agency, Director. Washington, DC 20472, (202) 646–3606. Room 239, 1919 M Street, N.W., [FR Doc. 95–13904 Filed 6–6–95; 8:45 am] Washington, D.C. or may be purchased SUPPLEMENTARY INFORMATION: Notice is BILLING CODE 6718±02±P from the Commission’s copy contractor hereby given that, in a letter dated May ITS, Inc. (202) 857–3800. Opposition to 30, 1995, the President declared a major this petition must be filed June 22, 1995. disaster under the authority of the [FEMA±1052±DR] See Section 1.4(b)(1) of the Robert T. Stafford Disaster Relief and Commission’s rules (47 CFR 1.4(b)(1)). Emergency Assistance Act (42 U.S.C. South Dakota; Major Disaster and Replies to the opposition must be filed 5121 et seq.), as follows: Related Determinations within 10 days after the time for filing I have determined that the damage in AGENCY: Federal Emergency oppositions has expired. certain areas of the State of Illinois, resulting Subject: Price Cap Regulation of Local from severe storms and flooding on May 15, Management Agency (FEMA). Exchange Carriers—Rate-of-Return 1995 and continuing is of sufficient severity ACTION: Notice. Sharing and Lower Formula and magnitude to warrant a major disaster Adjustment. (CC Docket No. 93– declaration under the Robert T. Stafford SUMMARY: This is a notice of the 179) Disaster Relief and Emergency Assistance Act Presidential declaration of a major (‘‘the Stafford Act’’). I, therefore, declare that disaster for the State of South Dakota Number of Petition Filed: 1 such a major disaster exists in the State of Subject: Amendment of Section (FEMA–1052–DR), dated May 26, 1995, Illinois. and related determinations. 73.606(b), Table of Allotments, In order to provide Federal assistance, you Television Broadcast Stations. are hereby authorized to allocate from funds EFFECTIVE DATE: May 26, 1995. (Osage Beach, Missouri) available for these purposes, such amounts as FOR FURTHER INFORMATION CONTACT: Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30087 Pauline C. Campbell, Response and Dated: May 30, 1995. Stewart Associates; Change in Bank Recovery Directorate, Federal James L. Witt, Control Notice Emergency Management Agency, Director. Acquisition of Shares of Banks or Washington, DC 20472, (202) 646–3606. [FR Doc. 95–13905 Filed 6–6–95; 8:45 am] Bank Holding Companies SUPPLEMENTARY INFORMATION: Notice is BILLING CODE 6718±02±M hereby given that, in a letter dated May The notificant listed below has 26, 1995, the President declared a major applied under the Change in Bank disaster under the authority of the Control Act (12 U.S.C. 1817(j)) and § Robert T. Stafford Disaster Relief and FEDERAL RESERVE SYSTEM 225.41 of the Board’s Regulation Y (12 Emergency Assistance Act (42 U.S.C. CFR 225.41) to acquire a bank or bank 5121 et seq.), as follows: First Citizens Bancorporation of South holding company. The factors that are Carolina, Inc.; Formation of, considered in acting on notices are set I have determined that the damage in Acquisition by, or Merger of Bank forth in paragraph 7 of the Act (12 certain areas of the State of South Dakota, resulting from severe storms, flooding, and Holding Companies U.S.C. 1817(j)(7)). The notice is available for immediate ground saturation due to high water tables on March 1, 1995, and continuing, is of The company listed in this notice has inspection at the Federal Reserve Bank sufficient severity and magnitude to warrant applied for the Board’s approval under indicated. Once the notice has been a major disaster declaration under the Robert section 3 of the Bank Holding Company accepted for processing, it will also be T. Stafford Disaster Relief and Emergency Act (12 U.S.C. 1842) and § 225.14 of the available for inspection at the offices of Assistance Act (the Stafford Act). I, therefore, Board’s Regulation Y (12 CFR 225.14) to the Board of Governors. Interested declare that such a major disaster exists in become a bank holding company or to persons may express their views in the State of South Dakota. acquire a bank or bank holding writing to the Reserve Bank indicated In order to provide Federal assistance, you company. The factors that are for the notice or to the offices of the are hereby authorized to allocate from funds considered in acting on the applications Board of Governors. Comments must be available for these purposes, such amounts as are set forth in section 3(c) of the Act received not later than June 21, 1995. A. Federal Reserve Bank of you find necessary for Federal disaster (12 U.S.C. 1842(c)). assistance and administrative expenses. Philadelphia (Michael E. Collins, Senior The application is available for You are authorized to provide Public Vice President) 100 North 6th Street, Assistance in the designated areas. Disaster immediate inspection at the Federal Philadelphia, Pennsylvania 19105: Unemployment Assistance may be provided Reserve Bank indicated. Once the 1. Stewart Associates, York, at a later date, if warranted. Consistent with application has been accepted for Pennslyvania; to retain 15 percent of the the requirement that Federal assistance be processing, it will also be available for voting shares of Drovers Bancshares supplemental, any Federal funds provided inspection at the offices of the Board of Corporation, York, Pennsylvania, and under the Stafford Act for Public Assistance Governors. Interested persons may thereby indirectly retain Drovers and will be limited to 75 percent of the total express their views in writing to the Mechanics Bank, York, Pennyslvania. eligible costs. Reserve Bank indicated for that Board of Governors of the Federal Reserve application or to the offices of the Board System, June 1, 1995. The time period prescribed for the of Governors. Any comment on an William W. Wiles, implementation of section 310(a), application that requests a hearing must Priority to Certain Applications for Secretary of the Board. include a statement of why a written Public Facility and Public Housing [FR Doc. 95–13879 Filed 6–6–95; 8:45 am] Assistance, 42 U.S.C. 5153, shall be for presentation would not suffice in lieu of BILLING CODE 6210±01±F a period not to exceed six months after a hearing, identifying specifically any the date of this declaration. questions of fact that are in dispute and summarizing the evidence that would FEDERAL TRANSIT ADMINISTRATION Notice is hereby given that pursuant be presented at a hearing. to the authority vested in the Director of Environmental Impact Statement on the Federal Emergency Management Comments regarding this application must be received not later than July 3, the Metro-North Commuter Railroad Agency under Executive Order 12148, I Dover Plains Branch Improvement 1995. hereby appoint David P. Grier, IV of the Program Between Dover Plains and Federal Emergency Management Agency A. Federal Reserve Bank of Wassaic, Dutchess County, NY to act as the Federal Coordinating Richmond (Lloyd W. Bostian, Jr., Senior Officer for this declared disaster. Vice President) 701 East Byrd Street, AGENCY: Federal Transit Administration I do hereby determine the following Richmond, Virginia 23261: (FTA). ACTION: Notice of Intent. areas of the State of South Dakota to 1. First Citizens Bancorporation of have been affected adversely by this South Carolina, Inc., Columbia, South SUMMARY: The Federal Transit declared major disaster: Carolina; to merge with SNB Financial Administration (FTA) and Metro-North The counties of Aurora, Beadle, Brookings, Corporation, Summerville, South Commuter Railroad (Metro-North) Brown, Brule, Buffalo, Butte, Campbell, Carolina, and thereby indirectly acquire intend to prepare an environmental Charles Mix, Clark, Codington, Davison, Day, Summerville National Bank, impact statement (EIS), in accordance Deuel, Edmunds, Faulk, Gergory, Hamlin, Summerville, South Carolina. with the National Environmental Policy Hand, Hanson, Hughes, Hyde, Jerauld, Jones, Act of 1969, on a proposal by Metro- Kingsbury, Lawrence, Lyman, McPherson, Board of Governors of the Federal Reserve System, June 1, 1995. North to extend commuter railroad Marshall, Meade, Pennington, Potter, service for approximately 5 miles on the Roberts, Sanborn, Spink, Stanley, Sully, and William W. Wiles, Dover Plains Branch of the Harlem Line Tripp for Public Assistance. Secretary of the Board. from the Village of Dover Plains to the (Catalog of Federal Domestic Assistance No. [FR Doc. 95–13878 Filed 6–6–95; 8:45 am] Hamlet of Wassaic in the Town of 83.516, Disaster Assistance) BILLING CODE 6210±01±F Amenia, Dutchess County, New York. 30088 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices The Proposed Action, also known as organizations, as well as federal, state, Alternatives the Wassaic Extension Project, will and local agencies, to participate in The alternatives proposed for extend north on the former Penn Central identifying the alternatives to be evaluation include: owned right-of-way from the existing evaluated in the EIS and identifying any (1) No Build—This alternative Dover Plains Station, pass immediately significant social, economic, and involves no change to transportation to the west of the Wassaic environmental issues related to the services or facilities in the corridor. Developmental Center (WDC) Proposed Action and Alternatives (2) The Proposed Action—The paralleling NYS Route 22/343, pass described below. During the scoping Proposed Action involves a 5-mile through the hamlet of Wassaic, and process, comments should focus on extension of the Dover Plains Branch on terminate approximately 3,200 feet (0.6 identifying specific social, economic, the Harlem Line to a point 3,200 feet and/or environmental issues to be mile) north of the hamlet adjacent to (0.6 mile) north of the hamlet of Wassaic evaluated and suggesting alternatives NYS Route 22/343. The action also where a rail yard, passenger station, and which may be less costly or less includes the construction of a rail yard, a parking lot consisting of environmentally damaging, while station, and 250 parking spaces (150 approximately 250 spaces will be achieving similar transportation paved, 100 unpaved) to be located on a constructed. In addition, a small objectives. Scoping is not the site along the alignment just north of passenger station will also be appropriate forum in which to indicate Wassaic at the terminus of the proposed constructed at the WDC with a parking preference for a particular alternative. extension. A smaller passenger station lot of 50 spaces. Comments on preferences should be will be constructed at the WDC with a (3) Alternative 1—Alternative 1 communicated after the draft EIS has parking lot of 50 spaces. The total length includes all the elements of the been completed and issued for review of the extension project is 5 miles. Proposed Action, except for one The proposed project is intended to and comment. If you wish to be placed passenger station and parking lot. The help relieve an existing congested on the mailing list to receive further passenger station and approximately parking situation at Dover Plains information as the project develops, 250-space parking lot will be station, increase the operating efficiency contact Ms. Mainiero as described constructed within the hamlet of of Metro-North and expand Metro- above. Following the public scoping Wassaic. North’s market. meeting a scoping document will be (4) Alternative 2—Alternative 2 In addition to the Proposed Action, prepared that will contain the transcript involves the extension of the Dover the EIS will evaluate a No-Build from the public scoping meeting, any Plains Branch on the Harlem Line to a alternative and two (2) Build written comments received, an outline point approximately 2,000 feet (0.4 alternatives, as well as any additional of the decisions that have been made mile) north of the existing terminus of alternative(s) generated through the during the scoping process, and a Dover Plains. A rail yard and a 250- scoping process. summary of the issues to be evaluated Scoping will be accomplished in a draft EIS. space parking lot will be constructed in through correspondence with interested an agricultural parcel immediately north Description of the Study Area and of the Tenmile River. The parking lot persons and organizations, as well as Project Need with federal, state, and local agencies. will serve the existing station at Dover One (1) public scoping meeting will be The corridor is approximately 5 miles Plains. conducted. long, stretching between the village of In addition to the construction discussed above, the Build Alternatives COMMENT DUE DATE: Written comments Dover Plains and the Hamlet of Wassaic, will also require track replacement, on the scope of alternatives and impacts in the Town of Amenia, Dutchess bridge rehabilitation, and other should be submitted by July 20 to Ms. County, New York. It is oriented on a improvements to bring the existing rail Janet Mainiero, Metro-North Commuter north-south axis. The proposed project line up to operational standards. The Railroad, 347 Madison Avenue, New is intended to provide service to people extent of this work is dependent upon York City, New York 10017. Verbal residing beyond the current Dover the distance of track required for each comments should be made at the Plains terminus, expand Metro-North’s alternative. scoping meeting scheduled below. market, help relieve an existing The proposed project and alternatives Verbal comments made at the scoping congested parking situation at the Dover are based upon the initial technical meeting will be transcribed. Assistance Plains station, provide more frequent work performed to date and will be provided for the hearing service to the area, and improve the consultations with local and state impaired. quality of life in the region by implementing a transit project which officials. SCOPING MEETING: The public scoping conforms to the intent of the Clean Air Since the proposed action is meeting concerning the proposed Act Amendments (CAAA) of 1990. In preliminary, consideration will be given Wassaic Extension Project will be held addition, the proposed rail yard will to modifications to it and the existing on: June 20, 1995, 7:00 p.m., Town Hall, allow Metro-North to increase the alternatives, as well as additional Amenia, New York. efficiency of its operation. reasonable alternatives. Regard also FOR FURTHER INFORMATION CONTACT: Ms. would be provided to any relevant Letitia A. Thompson, Deputy Regional Previous Activity concerns. Administrator, Federal Transit Metro-North has performed some Administration, 26 Federal Plaza, New preliminary analysis on the feasibility of Probable Effects York, New York 10278 at 212–264–8162 extending the Dover Plains Branch In the EIS, FTA/Metro-North will or Janet Mainiero, Project Director, service. Meetings were held with locally evaluate all significant social, economic, Metro-North Railroad, 347 Madison elected officials regarding this work. and environmental effects, or impacts, Avenue, New York, New York 10017 at Furthermore, the project has been of the alternatives. Environmental and 212–340–4834. discussed at public meetings conducted social impacts proposed for analysis SUPPLEMENTARY INFORMATION: FTA and by the Poughkeepsie-Dutchess County include water quality, wetlands, Metro-North Commuter Railroad invite Metropolitan Planning Organization cultural resources, community facilities, all interested individuals and (MPO) in 1993 and 1994. and traffic and parking impacts near Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30089 stations. Impacts on land use, aesthetics, FOR FURTHER INFORMATION CONTACT: Gary [Docket No. 95M±0121] hazardous waste sites, and noise and E. Stefan, Center for Veterinary vibration will also be addressed. The Medicine (HFV–244), Food and Drug EP Technologies, Inc.; Premarket Approval of EPT±1000 Cardiac impacts will be evaluated for the Administration, 7500 Standish Pl., Ablation System construction period and for the long- Rockville, MD 20855, 301–594–1769. term period of operation. Measures to AGENCY: Food and Drug Administration, SUPPLEMENTARY INFORMATION: FDA is mitigate any significant adverse impacts HHS. requesting nominations for members to will be considered. ACTION: Notice. serve on the committee. The function of FTA Procedures the committee is to review and evaluate SUMMARY: The Food and Drug The EIS process will be performed in available data concerning safety and Administration (FDA) is announcing its accordance with Federal Transit Laws effectiveness of marketed and approval of the application by EP and FTA’s regulations and guidelines investigational new animal drugs, feeds, Technologies, Inc., Sunnyvale, CA, for for preparing an Environmental Impact and devices for use in the treatment and premarket approval, under the Federal Statement. The impacts of the project prevention of animal disease and Food, Drug, and Cosmetic Act (the act), will be assessed and, if necessary, the increased animal production. of the EPT–1000 Cardiac Ablation scope of the project will be revised or System. After reviewing the refined to minimize and mitigate any Criteria for Members recommendation of the Circulatory adverse impacts. After its publication, System Devices Panel, FDA’s Center for Persons nominated for membership the draft EIS will be available for public Devices and Radiological Health (CDRH) on the Veterinary Medicine Advisory and private agency review and notified the applicant, by letter of Committee shall have adequately comment. One public hearing will be October 28, 1994, of the approval of the held. On the basis of the draft EIS and diversified experience appropriate to application. the work of the committee in such fields comments received, the project will be DATES: Petitions for administrative as companion animal medicine, food revised or further refined as necessary review by July 7, 1995. animal medicine, avian medicine, and the final EIS completed. ADDRESSES: Written requests for copies microbiology, biometrics, toxicology, Issued on June 5, 1995. of the summary of safety and pathology, pharmacology, animal Letitia A. Thompson, effectiveness data and petitions for science, and chemistry. The specialized Deputy Regional Administrator. administrative review to the Dockets training and experience necessary to [FR Doc. 95–14069 Filed 6–5–95; 2:20 pm] Management Branch (HFA–305), Food qualify the nominee as an expert BILLING CODE 4910±57±P and Drug Administration, rm. 1–23, suitable for appointment is subject to 12420 Parklawn Dr., Rockville, MD review, but may include experience in 20857. medical practice, teaching, and/or DEPARTMENT OF HEALTH AND FOR FURTHER INFORMATION CONTACT: HUMAN SERVICES research relevant to the field of activity Mark Massi, Center for Devices and of the committee. The term of office is Radiological Health (HFZ–450), Food Food and Drug Administration 4 years. and Drug Administration, 9200 Nomination Procedures Corporate Blvd., Rockville, MD 20850, Request for Nominations for Members 301–443–8609. on Public Advisory Committees; Any interested person may nominate SUPPLEMENTARY INFORMATION: On Veterinary Medicine Advisory one or more qualified persons for September 28, 1992, EP Technologies, Committee membership on the committee. Inc., Sunnyvale, CA 94086, submitted to AGENCY: Food and Drug Administration, Nominations shall state that the CDRH an application for premarket HHS. nominee is willing to serve as a member approval of the EPT–1000 Cardiac ACTION: Notice. of the committee and appears to have no Ablation System. The device is a radio conflict of interest that would preclude frequency-powered cardiac catheter SUMMARY: The Food and Drug ablation system and is indicated for Administration (FDA) is requesting committee membership. FDA will ask the potential candidates to provide interruption of accessory nominations for members to serve on atrioventricular (AV) conduction the Veterinary Medicine Advisory detailed information concerning such matters as employment, financial pathways associated with tachycardia, Committee in FDA’s Center for treatment of AV nodal re-entrant Veterinary Medicine. Nominations will holdings, consultancies, and research grants or contracts to permit evaluation tachycardia, and for creation of be accepted for vacancies that will or complete AV block in patients with a of possible sources of conflict of may occur during the next 16 months. rapid ventricular response to an atrial interest. FDA has a special interest in ensuring arrhythmia-typically chronic, drug that women, minority groups, and This notice is issued under the refractory atrial fibrillation. individuals with disabilities are Federal Advisory Committee Act (5 On May 2, 1994, the Circulatory adequately represented on advisory U.S.C. app. 2) and 21 CFR part 14, System Devices Panel of the Medical committees and, therefore, extends relating to advisory committees. Devices Advisory Committee, an FDA particular encouragement to Dated: May 25, 1995. advisory committee, reviewed and nominations for appropriately qualified recommended approval of the female, minority, or disabled Linda A. Suydam, application. On October 28, 1994, CDRH candidates. Interim Deputy Commissioner for Policy. approved the application by a letter to DATES: No cutoff date is established for [FR Doc. 95–13829 Filed 6–6–95; 8:45 am] the applicant from the Director of the receipt of nominations. BILLING CODE 4160±01±F Office of Device Evaluation, CDRH. ADDRESSES: All nominations for A summary of the safety and membership should be submitted to effectiveness data on which CDRH Gary E. Stefan (address below). based its approval is on file in the 30090 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices Dockets Management Branch (address Health Resources and Services Act of 1994 (title II of Pub. L. 103–112, above) and is available from that office Administration dated October 21, 1993), as well as the upon written request. Requests should comparative costs of the various be identified with the name of the Grants to Improve Emergency Medical methods for filing and paying for device and the docket number found in Services and Trauma Care in Rural queries, has resulted in a decision to brackets in the heading of this Areas further reduce fees for users when they document. AGENCY: Health Resources and Services both query and receive responses via the Opportunity for Administrative Review Administration, HHS. telecommunications network as well as Section 515(d)(3) of the act (21 U.S.C. ACTION: Notice of extension of pay query fees by credit card, electronic 360e(d)(3)) authorizes any interested application due date. funds transfer or such other electronic person to petition, under section 515(g) transfer options as may be offered in the SUMMARY: This notice extends the future. The options to query and pay of the act, for administrative review of application due date for grants to CDRH’s decision to approve this user fees by these means facilitate the improve emergency medical services querying process and make it less costly application. A petitioner may request (EMS) and trauma care in rural areas. to both users and the Data Bank than all either a formal hearing under part 12 (21 The application due date for the EMS/ CFR part 12) of FDA’s administrative trauma care grants in rural areas is other available options. practices and procedures regulations or extended to July 19, 1995. All other Accordingly, the Department is a review of the application and CDRH’s aspects of the April 20, 1995, Federal reducing the basic user fee to $3.00 per action by an independent advisory Register notice (60 FR 19753) remain name per query submitted and paid via committee of experts. A petition is to be the same. the method described above, with in the form of a petition for receipt by electronic method. A $3.00 reconsideration under § 10.33(b) (21 Dated: June 1, 1995. surcharge will be charged for queries CFR 10.33(b)). A petitioner shall Ciro V. Sumaya identify the form of review requested Administrator. submitted electronically on diskette to (hearing or independent advisory [FR Doc. 95–13883 Filed 6–6–95; 8:45 am] pay for the extra handling and mailing costs for these queries. A $4.00 committee) and shall submit with the BILLING CODE 4160±15±P petition supporting data and surcharge will be charged for all queries information showing that there is a which are paid for by check or money genuine and substantial issue of National Practitioner Data Bank: order to cover the cost of debt material fact for resolution through Change in User Fee management. Paper queries will no longer be accepted except practitioner administrative review. After reviewing The Health Resources and Services self-queries. These changes are effective the petition, FDA will decide whether to Administration (HRSA), Public Health grant or deny the petition and will Service (PHS), Department of Health June 26, 1995. publish a notice of its decision in the and Human Services (DHHS), is The criteria set forth in § 60.12(b) of Federal Register. If FDA grants the announcing a change in the fee charged the regulations and allowable costs as petition, the notice will state the issue to entities authorized to request required in the Appropriations Act of to be reviewed, the form of review to be information from the National 1994 were used in determining the used, the persons who may participate Practitioner Data Bank (Data Bank). in the review, the time and place where amount of this new fee. The criteria The user fee of $6.00 for queries include such cost factors as: (1) the review will occur, and other details. submitted by diskette or Petitioners may, at any time on or Electronic data processing time, telecommunications network, with a before July 7, 1995, file with the Dockets equipment, materials, computer $4.00 surcharge added for queries Management Branch (address above) programmers and operators or other submitted on paper, was announced in two copies of each petition and employees; and (2) preparation of the Federal Register on June 1, 1993 (58 supporting data and information, reports—materials, photocopying, identified with the name of the device FR 31215). postage, and administrative personnel. The Data Bank is authorized by the and the docket number found in Health Care Quality Improvement Act of When a request is for information on brackets in the heading of this 1986 (the Act), title IV of Public Law one or more physician, dentist, or other document. Received petitions may be 99–660, as amended (42 U.S.C. 11101 et health care practitioner, the appropriate seen in the office above between 9 a.m. seq.). Section 427(b)(4) of the Act total fee will be $3.00 (plus a $3.00 and/ and 4 p.m., Monday through Friday. This notice is issued under the authorizes the establishment of fees for or a $4.00 surcharge for submission and Federal Food, Drug, and Cosmetic Act the costs of processing requests for payment as described above) times the (secs. 515(d), 520(h) (21 U.S.C. 360e(d), disclosure and of providing such number of individuals about whom 360j(h))) and under authority delegated information. information is being requested. For to the Commissioner of Food and Drugs Final regulations at 45 CFR part 60 set examples, see the table below. forth the criteria and procedures for (21 CFR 5.10) and redelegated to the The fee charged will be reviewed information to be reported to and Director, Center for Devices and periodically, and revised as necessary, Radiological Health (21 CFR 5.53). disclosed by the Data Bank. Section 60.3 of these regulations should be consulted based upon experience. Any changes in Dated: May 26, 1995. for the definition of terms used in this the fee, and the effective date of the Joseph A. Levitt, announcement. change, will be announced in the Deputy Director for Regulations Policy, Center A reassessment of the full operating Federal Register. for Devices and Radiological Health. costs related to processing requests for [FR Doc. 95–13827 Filed 6–6–95; 8:45 am] disclosure of Data Bank information, as BILLING CODE 4160±01±F required by the DHHS Appropriations Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30091 Query method Fee per name in query, by method of payment Examples Electronic (Telecom network) ...... $3.00 (if paid electronically via credit card or other electronic means and response 10 names in query. received electronically). 10×$3=$30.00 Electronic (Diskette) ...... $6.00 (if paid electronically via credit card or other electronic means and response 10 names in query. received on paper). 10×$6=$60.00 Electronic (Telecom network) ...... $7.00 (if not paid via credit card or other electronic means) ...... 10 names in query. 10×$7=$70.00 Electronic (Diskette) ...... $10.00 (if not paid via credit card or other electronic means) ...... 10 names in query. 10×$10=$100.00 * Paper queries will no longer be accepted except practitioner self-queries Dated: June 1, 1995. National Institute on Aging; Notice of Drive, Room 4214, Bethesda, MD 20892, Ciro V. Sumaya, Closed Meeting (301) 435–1215. Name of SEP: Microbiological and Administrator. Pursuant to Section 10(d) of the [FR Doc. 95–13884 Filed 6–6–95; 8:45 am] Immunological Sciences. Federal Advisory Committee Act, as Date: June 21–23, 1995. BILLING CODE 4160±15±P amended (5 U.S.C. Appendix 2), notice Time: 8:30 a.m. is hereby given of the following Place: Holiday Inn, Chevy Chase, MD. meeting: Contact Person: Dr. Lynwood Jones, National Institutes of Health Name of Subcommittee: Biological and Scientific Review Admin., 6701 Rockledge Clinical Aging Review Subcommittee A. Drive, Room 4192, Bethesda, MD 20892, National Institute of General Medical Date: July 11, 1995. (301) 435–1153. Sciences; Notice of Closed Meeting Time: 1:00 p.m. to adjournment. The meetings will be closed in accordance Place: The Bethesda Gateway Building, with the provisions set forth in secs. Pursuant to Section 10(d) of the 7201 Wisconsin Avenue, 5th Floor 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. Federal Advisory Committee Act, as Conference Room, Bethesda, Maryland Applications and/or proposals and the 20852–9205. amended (5 U.S.C. Appendix 2), notice discussions could reveal confidential trade Contact Person: Dr. Arthur Schaerdel, is hereby given of the following Scientific Review Administrator, Gateway secrets or commercial property such as meeting: Building, Room 2C212, National Institutes of patentable material and personal information concerning individuals associated with the Committee Name: National Institute of Health, Bethesda, Maryland 20892–9205, applications and/or proposals, the disclosure General Medical Sciences, Special Emphasis (301) 496–9666. Purpose/Agenda: For the review, of which would constitute a clearly Panel—Instrumentations. discussion, and evaluation of individual unwarranted invasion of personal privacy. Date: June 29–30. research grant applications. This notice is being published less than 15 Time: 8:30 a.m.–5 p.m. The meeting will be closed in accordance days prior to the meeting due to the urgent Place: 45 Center Drive, Conference Room with the provisions set forth in sec. need to meet timing limitations imposed by B, Bethesda, MD 20892–6200. 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. the grant review cycle. Contact Person: Dr. Richard Martinez, Applications and/or proposals and the (Catalog of Federal Domestic Assistance Scientific Review Administrator, NIGMS, 45 discussions could reveal confidential trade secrets or commercial property such as Program Nos. 93.306, 93.333, 93.337, 93.393– Center Drive, Room 1AS–19b, Bethesda, MD 93.396, 93.837–93.844, 93.846–93.878, 20892–6200. patentable material and personal information concerning individuals associated with the 93.892, 93.893, National Institutes of Health, Purpose: To review grant applications. applications and/or proposals, the disclosure HHS) The meeting will be closed in accordance of which would constitute a clearly Dated: May 31, 1995. with the provisions set forth in secs. unwarranted invasion of personal privacy. Susan K. Feldman, 552b(c)(4) and 552b(c)(6), Title 5, U.S.C. The (Catalog of Federal Domestic Assistance discussions of these applications could Program No. 93.866, Aging Research, Committee Management Officer, NIH. reveal confidential trade secrets or National Institutes of Health.) [FR Doc. 95–13871 Filed 6–6–95; 8:45 am] commercial property such as patentable Dated: May 31, 1995. BILLING CODE 4140±01±M material and personal information Susan K. Feldman, concerning individuals associated with the Committee Management Officer, NIH. applications, the disclosure of which would National Cancer Institute; Amended constitute a clearly unwarranted invasion of Notice of Meeting personal privacy. Division of Research Grants; Notice of (Catalog of Federal Domestic Assistance Closed Meetings Notice is hereby given to amend the Program Nos. 93.821, Biophysics and notice of the National Cancer Institute Physiological Sciences; 93.859, Pursuant to section 10(d) of the Board of Scientific Counselors, Division Pharmacological Sciences; 93.862, Genetics Federal Advisory Committee Act, as of Cancer Etiology meeting which was Research; 93.863, Cellular and Molecular amended (5 U.S.C. Appendix 2), notice published in the Federal Register (60– Basis of Disease Research; 93.880, Minority is hereby given of the following Division FR–19600) on April 19, 1995. of Research Grants Special Emphasis Access Research Careers [MARC]; and The Board was originally scheduled Panel (SEP) meetings: 93.375, Minority Biomedical Research to be open on June 15 from 9 am to Support [MBRS]). Purpose/Agenda: To review individual recess and closed on June 16 from 9 am Dated: May 31, 1995. grant applications. to adjournment. The Board meeting will Name of SEP: Clinical Sciences. Susan K. Feldman, now be open from 8:30 am to Date: June 21–23, 1995. Committee Management Officer, NIH. Time: 8:00 a.m. approximately 3 pm on June 15. The [FR Doc. 95–13872 Filed 6–6–95; 8:45 am] Place: Holiday Inn, Bethesda, MD. meeting will be closed on June 15 from approximately 3 pm to recess and from BILLING CODE 4140±01±M Contact Person: Dr. Daniel McDonald, Scientific Review Admin., 6701 Rockledge 8:30 am to adjournment on June 16. 30092 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices Dated: May 31, 1995. administrative management support to change the title to Office of Logistics Susan K. Feldman, all OA subcomponents in human Management. Committee Management Officer, NIH. resource relations, organization Under the heading Office of the [FR Doc. 95–13869 Filed 6–6–95; 8:45 am] development, and other administrative services. Director, Division of Procurement BILLING CODE 4140±01±M (HNAB4), change the title to Office of Under the heading Office of the Director, Division of Contracts and Procurement Management (HNAB4) and Statement of Organization, Functions, Grants (HNAB2), change the title to revise the functional statement to the and Delegations of Authority Office of Contracts and Grants following: (1) Responsible for all aspects Management and revise the functional of station support and intramural Part H, Chapter HN (National statement to the following: (1) Advises procurement; (2) manages the program Institutes of Health) (NIH) of the using small purchases, formal Statement of Organization, Functions, the NIH Director and staff and provides leadership and direction for NIH advertisement, and negotiated and Delegations of Authority for the contracting procedures; (3) provides for Department of Health and Human contracting and grants management follow-up on orders and for continuing Services (40 FR 22859, May 27, 1975, as activities; (2) plans, develops, and contract administration; (4) formulates amended most recently at 60 FR 18607, recommends NIH-wide research and April 12, 1995), is amended to reflect development negotiated contracting and disseminates policies and the reorganization of the Office of policies, procedures, and practices; (3) procedures to implement Federal and Administration, Office of the Director, provides contracting officer services to Departmental regulations (meeting NIH (OA/OD/NIH) (HNAB). This those NIH components which have a needs for guidance in the procurement reorganization is consistent with small volume of research contracts; (4) function); and (5) provides oversight Administration objectives related to the maintains a continuing review of and technical assistance (manuals and National Performance Review (NPR) and contracting operations in those training guides) to decentralized station the Continuous Improvement Program Institutes, Centers, and Divisions (ICDs) support procurement operations. with decentralized authority to ensure (CIP)—specifically, streamlining, Dated: May 25, 1995. delayering, and decreasing the ratio of adherence to FPR, DHHS, PHS, and NIH supervisors to employees in accordance policies and standards; (5) provides NIH Harold Varmus, with effective management practices. research contracting operating units Director, NIH. with price/cost analysis services and The reorganization consists of the [FR Doc. 95–13873 Filed 6–6–95; 8:45 am] following: (1) Retitle three division-level comprehensive advice on the financial components of the OA to offices to responsibility of prospective BILLING CODE 4140±01±M ensure consistent nomenclature (2) contractors; (6) participates with other consolidate the small and disadvantaged offices in the Office of the Director, NIH, business function (currently in two OA and with NIH awarding components in divisions, the Division of Procurement the formulation, coordination, and DEPARTMENT OF THE INTERIOR and the Division of Contracts and implementation of DHHS, PHS, and NIH Grants) into open office in the Office of policies and procedures pertaining to Bureau of Land Management Contracts and Grants Management; and grants administration, and serves as (3) consolidate the ADP support focal point of liaison with the [MT±921±05±1320±01±P; MTM 83997] function (from the Division of Contracts management staffs of grantee and Grants and the Division of institutions; (7) in coordination with Coal Leases, Exploration Licenses, Logistics) and move it to the Office of PHS, maintains liaison with the Audit etc.: Montana; Correction the Director, OA. Agency, Office of the Assistant Specifically, the reorganization will: Secretary Comptroller, and the Office of AGENCY: Bureau of Land Management, (1) rename the Division of Contracts and Grants and Procurement Management, Montana State Office. Grants to the Office of Contracts and OS, on contracts and grants ACTION: Correction. Grants Management (OCGM); (2) rename management policy, procedural, and the Division of Logistics to the Office of operating matters including the Logistics Management (OLM); (3) resolution of audit reports; (8) conducts SUMMARY: In notice document 95–12074 rename the Division of Procurement to and monitors NIH-wide programs in on page 26453 in the issue of the Office of Procurement Management Small and Minority Businesses in Wednesday, May 17, 1995, make the (OPM); (4) revise the functional accordance with applicable Small following correction: statements for NIH/OD/OA/OD, OCGM, Business and Civil Rights Legislation; and OPM. (9) provides technical assistance in On page 26453, in the first column in Section HN–B, Organization and specification preparation in Small and the twenty-second line from the top, the Functions, is amended as follows: Disadvantaged Business opportunities; description previously published in the Under the heading Office of the (10) analyzes requirements for and Federal Register was Sec. 23: Director, Office of Administration coordinates NIH IMPAC and higher- NE1⁄4NE1⁄4SE1⁄4NW1⁄4. This should be (HNAB1), revise the functional level research and development contract changed to Sec. 23: NE1⁄4NE1⁄4, statement to the following: (1) Plans and data systems for the NIH; and (11) SE1⁄4NW1⁄4. directs the activities of the Office of analyzes, develops, and coordinates Dated: May 31, 1995. Administration; (2) conducts audit DHHS, PHS, and NIH initiatives in follow-ups for reviews conducted by the automated data and documentation Howard A. Lemm, Office of Management Assessment’s systems, procurement planning and Acting State Director. Division of Program Integrity and the control, contract forms management, [FR Doc. 95–13950 Filed 6–6–95; 8:45 am] OIG Office of Investigations; (3) and contract closure. provides ADP support to OA Under the heading Office of the BILLING CODE 4310±DN-P components; and (4) provides Director, Division of Logistics (HNAB3), Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30093 [NM±030±1220±00] first-come, first-served basis. This will material, preparing a sleeping bag or prevent people from monopolizing the other bedding material for use, or the Establishment of Visitor Restrictions use of limited developed camping parking of a motor vehicle, motor for Designated Sites, Special space. Prohibition of motorized vehicle home, or trailer for the apparent Recreation Management Areas, and free-play (operation of any 2-, 3-, or 4- purpose of overnight occupancy. Other Public Land in the Las Cruces wheel motor vehicle for purposes other Occupying a developed camp site or District, New Mexico than accessing a campsite) is necessary an approved location within AGENCY: Bureau of Land Management to minimize the noise and nuisance developed recreation areas and sites (BLM), Interior. factors that such activities represent in during the established night period of developed recreation sites. 10:00 p.m. to 6:00 a.m. will be ACTION: Proposed Visitor Restrictions; • Public Health and Safety—The considered overnight camping for fee Request for Comment. erection and maintenance of collection and enforcement purposes. SUMMARY: The proposed visitor unauthorized toilet facilities or other —Campfire means a controlled fire restrictions are necessary for the containers for human waste on the occurring outdoors for cooking, management of actions, activities, and public land could represent a major branding, personal warmth, lighting, use on public land including those threat to public safety and health. It ceremonial, or aesthetic purposes. which are acquired or conveyed to the should be noted that shooting —Abandonment means the voluntary BLM. Supplementary rule making is restrictions recommended do not relinquishment of control of property prohibit legitimate hunting activities provided for under Title 43 CFR Subpart for longer than a period specified with except within 1⁄2 mile of developed 8365. These proposed regulations no intent to retain possession. sites. Recreational shooters will be establish rules of conduct for the —Administrative activities means those encouraged to use public land where protection of persons, property, and activities conducted under the such shooting restrictions do not apply public land resources. As a visitor to authority of the BLM for the purpose and this use does not significantly public land, the user is required to of safeguarding persons or property, conflict with other uses. implementing management plans and follow certain rules designed to protect • Complementary Rules—Some rules, the land and the natural environment, to policies developed in accordance and such as parking or camping near water consistent with regulations or ensure the health and safety of visitors, sources, are recommended to and to promote a pleasant and repairing or maintaining facilities. complement those of State and local —Pet means a dog, cat, or any rewarding outdoor experience. agencies. Because these rules provide domesticated companion animal. This notice supersedes previous for the protection of persons and —Occupancy means the taking or notices published in the Federal resources in the interest and spirit of holding possession of a camp site, Register, December 15, 1988 (Vol. 53, cooperation with the responsible other location, or residence on public No. 241); July 24, 1989 (Vol. 54, No. agencies, these rules are deemed land. 140); August 17, 1989 (Vol. 54, No. 158); necessary. —Vehicle means any motorized or August 31, 1989 (Vol. 54, No. 168); May mechanized device, including Definitions 10, 1990 (Vol. 55, No. 91); July 9, 1991 bicycles, hang gliders, ultra lights, (Vol. 56, No. 131); January 22, 1991 As used in these supplementary rules, and hot air balloons which is (Vol. 56, No. 14); and correction to the term: propelled or pulled by any living or Supplementary Rules No. 2., February 1, —A SRMA—means an area where other energy source, and capable of 1991 (Vol. 56, No. 28), establishing special or more intensive types of travel by any means over ground, Supplementary Rules for Designated resource and user management are water, or air. Recreation Sites, Special Recreation needed. —Authorized Officer means any Management Areas and Other Public —A developed recreation site and area employee of the BLM who has been Land in New Mexico. means sites and areas that contain delegated the authority to perform More specifically, the purpose falls structures or capital improvements under Title 43. into the following categories: primarily used for recreation purposes —Stove fire means a fire built inside an • Implementation of Management by the public. Development may vary enclosed stove or grill, a portable Plans—Certain prohibited activities from limited development for brazier, or a pressurized liquid or gas have been recommended as rules for protection of the resource and the stove, including space-heating designated recreation sites and Special safety of users to a distinctly defined devices. Recreation Management Areas (SRMAs). site in which developed facilities that —Weapon means a firearm, compressed In order to implement these meet the Land and Water gas or spring-powered pistol or rifle, recommendations, they must be Conservation Fund Act of 1965 (as bow and arrow, crossbow, blowgun, published as specific prohibited acts in amended) criteria for a fee collection spearguns, slingshot, explosive the Federal Register. Use of the site are provided for concentrated device, or any other implement Supplementary Rules Section of 43 CFR, public recreation use. designed to discharge missiles or Subpart 8365, is the most appropriate —Public Land means any land, interest projectiles; hand-thrown spear, edged way of implementation. Rationale for in land, or related waters owned by weapons, nun-chucks, clubs, billy- these recommendations is presented in the United States and administered by clubs, and any device modified for its entirely in the resource management the BLM. Related waters are waters use or designed for use as a striking plan or recreation management plan for which lie directly over or adjacent to instrument; and includes any weapon the specific area. public land and which require the possession of which is prohibited • Mitigation of User Conflict—Certain management to protect Federally under New Mexico law. other rules are recommended because of administered resources or to provide —Historic or prehistoric structure or specific user conflict problems. for enhanced visitor safety and other ruin site means any location at least Prohibiting the reservation of camping recreation experiences. 50 years old which meets the space in developed campgrounds will —Camping means the erecting of a tent standards for inclusion on the allow such space to be available on a or shelter of natural or synthetic National Register of Historic Places as 30094 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices defined in 36 CFR 60.4, without 1. Any type or variety of vegetation • Ignition or burning of any material regard to whether the site has been (excluding dead and downed), containing or producing toxic or nominated or accepted. 2. Fuelwood or firewood, either green hazardous material. or standing deadwood or, • Carrying of weapons in violation of Supplementary Rules—All Public 3. Live plants (except for State or Federal law. Lands consumption, medicinal purposes, • Abandonment of animals. In addition to regulations contained study or personal collection). State and Local Laws in 43 CFR 8365.1, the following • Removing or transporting any supplementary rules apply to all public mineral resources including rock, sand, • Failure to comply with all land including those lands acquired or gravel, and other minerals on or from applicable State of New Mexico conveyed to the BLM and related public land without written consent, regulations for boating safety, waters. The following are prohibited proof of purchase, or a valid permit. equipment, and registration. unless authorized by written permit or Collection of specimens and samples in Supplementary Rules—Developed for administrative use: reasonable amounts for personal Recreation Sites/Areas and Special Sanitation noncommercial use, under 43 CFR Recreation Management Areas 8365.1–5(b) is not affected by this • To construct or maintain any section. In addition to the regulations unauthorized toilet facility. • Failure to prevent a pet from contained in 43 CFR 8365.1, 8365.2 and • The dumping or disposal of sewage harassing, molesting, injuring, or killing those listed above, the following rules or sewage treatment chemicals from humans, wildlife or livestock. will be applied in accordance with 43 self-contained or containerized toilets • Violation of the terms, stipulations, CFR 8365.2 The following activities are except at facilities provided for that or conditions of any permit or use prohibited unless authorized by written purpose. authorization. permit or for administrative uses: • To shower or bathe at any improved • Failure to show a permit or use • Failure to pay use fees at Aguirre or developed water source, outdoor authorization to any BLM employee Spring Campground, Dripping Springs hydrant pump, faucet or fountain, or upon request. Natural Area, Datil Well Campground, rest room water faucet unless such • Camp or occupy or build any fire or Three Rivers Recreation Area. water source is designated for that on, or in, any historic or prehistoric • Failure to immediately remove and purpose. structure or ruin site. dispose of in a sanitary manner, all pet • fecal material, trash, garbage or waste Occupancy and Use Competitive or commercial operations or events without a Special created. • To camp or occupy any site on Recreation Permit. • Failing to physically restrain a pet public land or any approved location, at all times within developed campsites including those in developed recreation Vehicles and picnic areas. Pets are prohibited areas and sites or SRMA, for a period • Operation of an off-road vehicle where posted on all designated nature longer than 14 days within any period without full time use of an approved or interpretive trails and from entering of 28 consecutive days. Exceptions, spark arrester and muffler. caves. Animals trained to assist which will be posted, include areas • Failure to display the required State handicapped persons are exempt from closed to camping and areas or sites off-road vehicle registration. this rule. with other designated camping stay • Lubricating or repairing any • Reserving space, except within limits. The 28-day period begins when vehicle, except repairs necessitated by established guidelines for group facility a camper initially occupies a specific emergency. reservations at Aguirre Spring location on public land. The 14-day • Operate, park, or leave a motorized Campground or Dripping Springs limit may be reached either through a vehicle in violation of posted Natural Area. Camping and picnicking number of separate visits or through 14 restrictions or in such a manner or space is available on a first-come, first- days of continuous occupation. After location as to: served basis. the 14 days of occupation, campers 1. Create a safety hazard, • Failure to maintain quiet between must move beyond a 25-mile radius 2. Interfere with other authorized the hours of 10:00 p.m. to 6:00 a.m. or from the previous location. When a users or uses, other hours posted. During this period, camping limit has been reached, use of 3. Obstruct or impede normal or no person shall create noise which any public land site within the 25-mile emergency traffic movement, disturbs other visitors. radius shall not occur again until at 4. Interfere with or impede • Vehicles off existing or designated least 30 days have elapsed from the last administrative activities, roads and trails unless facilities have day of authorized use. 5. Interfere with the parking of other been specifically provided for such use. • To park any motor vehicle for vehicles, or Motorized vehicles will be operated for longer than 30 minutes, or camp within 6. Endanger property or any person. access to and from developed facilities 300 yards of any spring, manmade water only. hole, water well, or watering tank used Public Health and Safety • To park or occupy a parking space by wildlife or domestic stock. Hunters • Possession or use of fireworks. posted or marked for handicapped use with valid hunting licenses may not • Leaving a campfire unattended, or without displaying an official park within 300 yards of these water failing to completely extinguish a fire identification tag or plate. sources. after use. • Posting or distribution of any signs, • To dispose of any burning or • The sale or gift of an alcoholic posters, printed material, or commercial smoldering material except at sites or beverage to a person under 21 years of advertisements. falicities provided for that purpose. age. • The discharge of firearms or other • Unauthorized cutting, removing, or • The possession of an alcoholic weapons, hunting and trapping within transporting woody materials including, beverage by a person under 21 years of 1⁄2 mile of developed recreation sites but not limited to: age. and areas. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30095 • Using, displaying, or carrying • Pets are prohibited on the Mexico 87502–0115. All written loaded weapons within developed Petroglyph Trail and the Pit House comments made pursuant to this action campsites or picnic areas. Village Trail within the Three Rivers will be made available for public • Disposing of any waste or grey Recreation Area. inspection during normal business water except where facilities are hours (8 a.m. to 4 p.m., MST) at 1474 List of Developed Recreation Sites/ provided. Rodeo Road, Santa Fe, New Mexico Areas and Special Recreation • Bringing equine stock, llama, cattle, 87505. Management Areas or other livestock within campgrounds FOR FURTHER INFORMATION CONTACT: 1. Aguirre Spring Campground (Mimbres or picnic areas unless facilities have • Mark Hakkila, Outdoor Recreation been specifically provided for such use. Resource Area) • Planner, BLM Mimbres Resource Area, Unauthorized gathering or T. 22 S., R. 4 E., NMPM 1800 Marquess, Las Cruces, NM 88005, Sec. 29. collecting woody plants or any other (505) 525–4341. natural resource, minerals, cultural, or 2. Dripping Springs Natural Area (Mimbres • Kevin Carson, Outdoor Recreation historical artifacts that require permits. Resource Area) Planner, BLM Socorro Resource Area, • Not adhering to fire danger ratings T. 23 S., R. 3 E., NMPM 198 Neel Ave. NW, Socorro, NM 87801, issued by Government. Secs. 1, 2. (505) 835–0412. • Climbing, walking on, ascending, T. 23 S., R. 4 E., NMPM • Joe Sanchez, Outdoor Recreation descending or traversing on the Sec. 7. Planner, BLM Caballo Resource Area, earthwork of Fort Craig National 3. Three Rivers Recreation Area (Caballo 1800 Marquess, Las Cruces, NM 88005, Historic Site, or historic structures Resource Area) (505) 525–4391. within the Dripping Springs Natural T. 11 S., R. 91⁄2 E., NMPM SUPPLEMENTARY INFORMATION: The Las Area, the Lake Valley Historic Site, or Secs. 17, 20, 21, 28. Cruces District Manager is establishing Fort Cummings. these supplementary rules, which are • Wood fires are prohibited within 4. Datil Well Campground (Socorro Resource necessary for the protection of persons, the Dripping Springs Natural Area Area) property, and public land and resources unless the firewood is provided by the T. 2 S., R. 10 W., NMPM currently under the Bureau’s BLM. Secs. 10, 11. administration within the Las Cruces • Aguirre Spring Campground use is 5. Fort Craig National Historic Site (Socorro District, New Mexico and those lands limited to overnight campers after 10:00 Resource Area) acquired for inclusion within the p.m. The entrance gate will be closed at T. 8 S., R. 2 W., NMPM administrative jurisdiction of the BLM 8:00 p.m. during summer hours Secs. 10, 11. as provided for in 43 CFR 8365.1–6. (approximately April 1 to September 30) These supplementary rules apply to all and at 6:00 p.m. during winter hours 6. Paleozoic Trackways (Mimbres Resource Area) persons using public land. Violations of (approximately October 1 to March 31). these rules are punishable by a fine not • The Dripping Springs Natural Area T. 22 S., R. 1 E., NMPM to exceed $1,000 and/or imprisonment will be managed as a day-use area (no Sec. 19. not to exceed 12 months. overnight camping). The entrance gate 7. Organ Mountains Recreation Lands Exceptions to these visitor restrictions located in T. 23 S., R. 3 E., Section 3 on SRMA (Mimbres Resource Area) may be permitted by the authorized the Dripping Springs road (controlling T. 22–26 S., R. 3–4 E., NMPM officer subject to limits and restrictions access to La Cueva Picnic Area, A.B. 8. Gila Lower Box SRMA (Mimbres Resource of controlling Federal and State law. Cox Visitor Center, and Dripping Area) Persons granted use exemptions must Springs Natural Area) will be locked at possess written authorization from the sunset. T. 19 S., R. 19 W., NMPM • Secs. 7–10, 15–19, 30. BLM Office having jurisdiction over the Pets are prohibited on the Dripping T. 19 S., R. 20 W., NMPM area. Users must further comply with Springs Trail uphill (southeast) of the Secs. 13–17, 20–29. the zoning, permitting, rules, or Crawford Trail junction (located in T. 23 1 1 1 9. Fort Cummings SRMA (Mimbres Resource regulatory requirements of other S., R. 3 E., Section 12, NW ⁄4SE ⁄4NE ⁄4). agencies, where applicable. All hikers beyond this point are Area) required to stay on trails or in T. 21 S., R. 8 W., NMPM Dated: May 24, 1995. established use areas in order to reduce Secs. 22, 23. Richard A. Whitley, damage to the Dripping Springs Ruins 10. The Box Special Management Area Acting State Director. and to protect endangered plants in the (Socorro Resource Area) [FR Doc. 95–13949 Filed 6–6–95; 8:45 am] area. T. 3 S., R. 1 W., NMPM BILLING CODE 4310±FB±M • Swimming, wading, and bathing are Sec. 31. prohibited at the pond at the Dripping 11. Lake Valley Historic Site (Caballo [NV±930±1430±01; NVN±59399] Springs Natural Area. Resource Area) • Discharge of firearms, walking off T. 18 S., R. 7 W., NMPM Notice of Realty Action; Recreation established trails, or unauthorized Sec. 28. and Public Purposes (R&PP) Act overnight camping are prohibited Classification; Nevada within the fenced enclosure at Fort DATES: Comments on the proposed rule Cummings, Lake Valley, or the Fort will be accepted until July 7, 1995. AGENCY: Bureau of Land Management, Craig National Historic Site. Comments received or postmarked after Interior. • this date may not be considered in the Overnight camping, discharge of ACTION: Notice. firearms, and wood fires are prohibited decision-making process on the final within The Box Special Management rulemaking. SUMMARY: The following described Area. ADDRESSES: Comments should be sent to public lands in Lander County, Nevada, • Lake Valley Historic Site use is the New Mexico State Director (933), have been examined and found suitable limited to posted hours. BLM, P.O. Box 27115, Santa Fe, New for conveyance (patent) to Lander 30096 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices County under the provisions of the years after the date of conveyance. No physically suited for the proposal, Recreation and Public Purposes Act of portion of the land shall under any whether the use is consistent with local June 14, 1926, as amended (43 U.S.C circumstances revert to the United planning and zoning, or if the use is 869 et seq.). Lander County proposes to States if any such portion has been used consistent with State and Federal use the lands for a municipal solid for solid waste disposal or for any other programs. waste disposal site to serve Austin, purpose which may result in the Application Comments: Interested Nevada, and the surrounding area. disposal, placement, or release of any parties may submit comments regarding Mount Diablo Meridian, Nevada hazardous substance; the specific use proposed in the 3. If, at any time, the patentee application and plan of development, T. 19 N., R. 43 E., transfers to another party ownership of whether the BLM followed proper Sec. 26, NW1⁄4SE1⁄4. any portion of the land not used for the administrative procedures in reaching Containing 40 acres, more or less. purpose specified in the application and the decision, or any other factor not The lands are not needed for Federal approved plan of development, the directly related to the suitability of the purposes. Conveyance is consistent with patentee shall pay the Bureau of Land land for a municipal solid waste current BLM land use planning and Management the fair market value, as disposal site. would be in the public interest. The determined by the authorized officer, of Any adverse comments will be patent, when issued will be subject to the transferred portion as of the date of reviewed by the State Director. In the the provisions of the Recreation and transfer, including the value of any absence of any adverse comments, the Public Purposes Act and applicable improvements thereon; classification of the land will become regulations of the Secretary of the 4. The above described land has been effective 60 days from the date of Interior, and will contain the following conveyed for utilization as a solid waste publication in the Federal Register. The reservations to the United States: disposal site by Lander County, Nevada. lands will not be conveyed until after 1. A right-of-way thereon for ditches Upon closure, the site may contain the classification becomes effective. and canals constructed by the authority small quantities of commercial and Dated: May 26, 1995. of the United States pursuant to the Act household hazardous waste as Michael C. Mitchel, of August 30, 1890 (43 U.S.C. 945); determined in the Resource Acting District Manager. 2. All mineral deposits shall be Conservation and Recovery Act of 1976, reserved to the United States, together as amended (42 U.S.C. 6901), and [FR Doc. 95–13957 Filed 6–6–95; 8:45 am] with the right to prospect for, mine, and defined in 40 CFR 261.4 and 261.5. BILLING CODE 4310±HC±P remove such deposits under applicable Although there is no indication these laws and regulations as the Secretary of materials pose any significant risk to the Interior may prescribe; human health or the environment, [NV±930±1430±01; NVN±58945] future land uses should be limited to will contain the following provisions: Notice of Realty Action; Recreation 1. Lander County, its successors or those which do not penetrate the liner or final cover of the landfill unless and Public Purposes (R&PP) Act assigns, assumes all liability for and Classification; Nevada shall defend, indemnify, and save excavation is conducted subject to harmless the United States and its applicable State and Federal AGENCY: Bureau of Land Management, officers, agents, representatives, and requirements; Interior. employees (hereinafter referred to in and will be subject to valid existing ACTION: Notice. this clause as the United States), from rights. all claims, loss, damage, actions, causes Detailed information concerning this SUMMARY: The following described of action, expense, and liability action is available for review at the public lands in Eureka County, Nevada, (hereinafter referred to in this clause as office of the Bureau of Land have been examined and found suitable claims) resulting from, brought for, or Management, Battle Mountain District, for conveyance (patent) to Eureka on account of, any personal injury, 50 Bastian Road, Battle Mountain, County under the provisions of the threat of personal injury, or property Nevada. Recreation and Public Purposes Act of damage received or sustained by any Upon publication of this notice in the June 14, 1926, as amended (43 U.S.C person or persons (including the Federal Register, the above described 869 et seq.). Eureka County proposes to patentee’s employees) or property land will be segregated from all other use the lands for a municipal solid growing out of, occurring, or attributable forms of appropriation under the public waste disposal site to serve Eureka, directly or indirectly, to the disposal of land laws, including the general mining Nevada, and the surrounding area. solid waste on, or the release of laws, except for conveyance under the Mount Diablo Meridian, Nevada hazardous substances from Mount Recreation and Public Purposes Act and Diablo Meridian, Nevada, T. 19 N., R. 43 leasing under the mineral leasing laws. T. 19 N., R. 53 E., Sec. 13, NE1⁄4NW1⁄4. E., sec. 26, NW1⁄4SE1⁄4, regardless of For a period of 45 days from the date of whether such claims shall be publication of this notice in the Federal Containing 40 acres, more or less. attributable to: (1) The concurrent, Register, interested parties may submit The lands are not needed for Federal contributory, or partial fault, failure, or comments regarding the proposed purposes. Conveyance is consistent with negligence of the United States, or (2) conveyance or classification of the lands current BLM land use planning and the sole fault, failure, or negligence of to the District Manager, Battle Mountain would be in the public interest. The the United States; District, P.O. Box 1420, Battle patent, when issued will be subject to 2. Provided, that the title shall revert Mountain, Nevada 89820. the provisions of the Recreation and to the United States upon a finding, Classification Comments: Interested Public Purposes Act and applicable after notice and opportunity for a parties may submit comments involving regulations of the Secretary of the hearing, that the patentee has not the suitability of the land for a Interior, and will contain the following substantially developed the land in municipal solid waste disposal site. reservations to the United States: accordance with the approved plan of Comments on the classification are 1. A right-of-way thereon for ditches development on or before the date five restricted to whether the land is and canals constructed by the authority Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30097 of the United States pursuant to the Act household hazardous waste as Dated: May 26, 1995. of August 30, 1890 (43 U.S.C. 945); determined in the Resource Michael C. Mitchel, 2. All mineral deposits shall be Conservation and Recovery Act of 1976, Acting District Manager. reserved to the United States, together as amended (42 U.S.C. 6901), and [FR Doc. 95–13958 Filed 6–6–95; 8:45 am] with the right to prospect for, mine, and defined in 40 CFR 261.4 and 261.5. BILLING CODE 4310±HC±P remove such deposits under applicable Although there is no indication these laws and regulations as the Secretary of materials pose any significant risk to the Interior may prescribe; human health or the environment, Fish and Wildlife Service will contain the following provisions: future land uses should be limited to 1. Eureka County, its successors or those which do not penetrate the liner Information Collection Submitted to assigns, assumes all liability for and or final cover of the landfill unless the Office of Management and Budget shall defend, indemnify, and save excavation is conducted subject to for Review Under the Paperwork harmless the United States and its applicable State and Federal Reduction Act officers, agents, representatives, and requirements; The proposal for the collection of employees (hereinafter referred to in and will be subject to valid existing information listed below has been this clause as the United States), from rights. submitted to the Office of Management all claims, loss, damage, actions, causes Detailed information concerning this and Budget (OMB) for approval under of action, expense, and liability action is available for review at the the provisions of the Paperwork (hereinafter referred to in this clause as office of the Bureau of Land Reduction Act (44 U.S.C. Chapter 35). claims) resulting from, brought for, or Management, Battle Mountain District, Copies of the proposed information on account of, any personal injury, 50 Bastian Road, Battle Mountain, collection requirement and related threat of personal injury, or property Nevada. forms and explanatory material may be damage received or sustained by any obtained by contacting the Service’s Upon publication of this notice in the person or persons (including the clearance officer at the phone number Federal Register, the above described patentee’s employees) or property listed below. Comments and suggestions land will be segregated from all other growing out of, occurring, or attributable on the requirement should be made forms of appropriation under the public directly or indirectly, to the disposal of directly to the Service Clearance Officer land laws, including the general mining solid waste on, or the release of and the Office of Management and laws, except for conveyance under the hazardous substances from Mount Budget, Paperwork Reduction Project Recreation and Public Purposes Act and Diablo Meridian, Nevada, T. 19 N., R. 53 (1018–XXXX), Washington, D.C. 20503, leasing under the mineral leasing laws. E., sec. 13, NE1⁄4NW1⁄4, regardless of telephone 202–395–7340. For a period of 45 days from the date of whether such claims shall be publication of this notice in the Federal Title: 1996 National Survey of Fishing, attributable to: (1) the concurrent, Register, interested parties may submit Hunting, and Wildlife-Associated contributory, or partial fault, failure, or comments regarding the proposed Recreation negligence of the United States, or (2) conveyance or classification of the lands OMB Approved Number: New collection the sole fault, failure, or negligence of Abstract: The Bureau of the Census is to the District Manager, Battle Mountain the United States; conducting the 1996 National Survey District, P.O. Box 1420, Battle 2. Provided, that the title shall revert of Fishing, Hunting, and Wildlife Mountain, Nevada 89820. to the United States upon a finding, Associated Recreation for the Fish after notice and opportunity for a Classification Comments: Interested and Wildlife Service. The Service has hearing, that the patentee has not parties may submit comments involving sponsored national surveys of fishing substantially developed the land in the suitability of the land for a and hunting at 5-year intervals since accordance with the approved plan of municipal solid waste disposal site. 1965 at the request of the States development on or before the date five Comments on the classification are through the International Association years after the date of conveyance. No restricted to whether the land is of Fish and Wildlife Agencies. The portion of the land shall under any physically suited for the proposal, 1996 national survey will be a circumstances revert to the United whether the use is consistent with local comprehensive data base of fish and States if any such portion has been used planning and zoning, or if the use is wildlife-related recreation activities for solid waste disposal or for any other consistent with State and Federal and expenditures that are needed for purpose which may result in the programs. identifying and developing disposal, placement, or release of any Application Comments: Interested management priorities at both hazardous substance; parties may submit comments regarding national and state levels. This survey 3. If, at any time, the patentee the specific use proposed in the is the only comprehensive national transfers to another party ownership of application and plan of development, data base of uses and users of fish and any portion of the land not used for the whether the BLM followed proper wildlife resources. It will provide purpose specified in the application and administrative procedures in reaching national and state level statistics that approved plan of development, the the decision, or any other factor not are not available from other sources. patentee shall pay the Bureau of Land directly related to the suitability of the The survey data are needed to help Management the fair market value, as land for a municipal solid waste the Service effectively administer the determined by the authorized officer, of disposal site. fish and wildlife restoration grant the transferred portion as of the date of Any adverse comments will be programs, and to help the states transfer, including the value of any reviewed by the State Director. In the develop project proposals and improvements thereon; absence of any adverse comments, the conservation programs. It provides 4. The above described land has been classification of the land will become essential information on present conveyed for utilization as a solid waste effective 60 days from the date of recreation demands and a basis for disposal site by Eureka County, Nevada. publication in the Federal Register. The projecting future demands. Data are Upon closure, the site may contain lands will not be conveyed until after needed to identify trends in fish and small quantities of commercial and the classification becomes effective. wildlife-related recreation. This 30098 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices information is used in formulating Osaka Museum of Natural History, National Biological Service policies and developing programs. Osaka, Japan, for the purpose of Service Form Number(s): FH–2, FH–3 enhancement of the species through Information Collection Submitted to and FH–4 scientific research. the Office of Management and Budget for Review Under the Paperwork Frequency: Once every 5 years PRT–801464 Description of Respondents: Individuals Reduction Act and households Applicant: Ron & Joy Holiday & Charles Estimated Completion Time: The Lizza, Alachua, FL The proposal for the collection of information listed below has been reporting burden is estimated to The applicant requests a permit to average 15 minutes per response for submitted to the Office of Management export/reimport one captive-born hunters and/or fishers and 11 minutes and Budget for approval under the clouded leopard (Neofelis nebulosa), for the nonconsumptive users provisions of the Paperwork Reduction and progeny of the animal currently Annual Responses: 172,010 Act (44 U.S.C. Chapter 35). Copies of the Annual Burden Hours: 36,037 held by the applicant and any animals proposed collection of information and Service Clearance Officer: Phyllis H. acquired in the United States by the related forms may be obtained by Cook, 703–358–1943 applicant to/from worldwide locations contacting the Service’s clearance Mail Stop—224 Arlington Square, U.S. to enhance the survival of the species officer at the phone number listed Fish and Wildlife Service, through conservation education. This below. Comments and suggestions on Washington, D.C. 20240 notification covers the activities the proposal should be made directly to conducted by the applicant over a three the bureau clearance officer and to the Dated: May 18, 1995. year period. Office of Management and Budget, Daniel M. Ashe, Paperwork Reduction Project, PRT–798403 Deputy Director—External Affairs. Washington, D.C. 20503, telephone [FR Doc. 95–13846 Filed 6–6–95; 8:45 am] Applicant: Tarzan Zerbini Circus, Webb City, (202) 395–7340, with copies of Anne BILLING CODE 4310±55±M MO Frondorf, Information and Technology Services, MS 3660, National Biological The applicant requests a permit to Service, 1849 C St. N.W., Washington, export/reimport one captive-held Asian Notice of Receipt of Applications for D.C. 20240. Permit elephant (Elephas maximus), and progeny of the animal currently held by Title: Information Surveys for the The following applicants have the applicant and any animals acquired National Biological Information applied for a permit to conduct certain in the United States by the applicant to/ Infrastructure. activities with endangered species. This from worldwide locations to enhance Abstract: The National Biological notice is provided pursuant to Section the survival of the species through Service is developing a National 10(c) of the Endangered Species Act of conservation education. This Biological Information Infrastructure 1973, as amended (16 U.S.C. 1531, et notification covers the activities (NBII) which will provide increased electronic (Internet) access to data and seq.): conducted by the applicant over a three information on biological resources PRT–803186 year period. that are available from many different Applicant: International Center for Gibbon Written data or comments should be Studies, Santa Clarita, CA sources around the U.S. NBS works submitted to the Director, U.S. Fish and with public agencies and private The applicant requests a permit to Wildlife Service, Office of Management organizations that wish to make the import one male captive-held dark- Authority, 4401 North Fairfax Drive, biological data and information they handed gibbon (Hylobates agillis agillis) Room 420(c), Arlington, Virginia 22203 maintain more accessible through the from Primates Preservation and and must be received by the Director NBII by helping them prepare, Education Centre, Eindhoven, within 30 days of the date of this describe, and electronically serve Netherlands for the purpose of publication. their data and information. NBS enhancement of the species through Documents and other information wishes to collect information, through captive-propagation and scientific a set of three related surveys, to better submitted with these applications are research. identify prospective sources of available for review, subject to the PRT–63110 biological data and information that requirements of the Privacy Act and could be made electronically Applicant: St. Louis Zoological Park, St. Freedom of Information Act, by any Louis, MO accessible to the public through the party who submits a written request for NBII. Information will be collected The applicant requests a permit to a copy of such documents to the through surveys in the following three import up to 30 tissue samples taken following office within 30 days of the areas: identifying and describing from captive born banteng (Bos date of publication of this notice: U.S. State-level biological data and javanicus brimanicus) held at the Khao Fish and Wildlife Service, Office of information bases, identifying and Kheow Open Zoo, Sriracha, Chonburi, Management Authority, 4401 North describing sources of taxonomic Thailand, for the purpose of Fairfax Drive, Room 420(c), Arlington, expertise, and identifying and enhancement of the species through Virginia 22203. Phone: (703/358–2104); describing research systematics scientific research. FAX: (703/358–2281). collections. PRT–802771 Dated: June 2, 1995. Bureau form number: none. Applicant: U.S. Fish and Wildlife Service, Caroline Anderson, Frequency: Three related surveys will Concord, NH each be completed one time. Acting Chief, Branch of Permits, Office of The applicant requests a permit to Resulting information will be made Management Authority. export four captive hatched, preserved electronically accessible via the specimens of the American burying [FR Doc. 95–13960 Filed 6–6–95; 8:45 am] National Biological Information beetle (Nicrophorus americanus) to the BILLING CODE 4310±55±P Infrastructure. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30099 Description of respondents: Individuals, individuals are advised that information 2000) after June 28, 1995, to determine Federal, State, and local government on this matter can be obtained by whether the hearing will be held. agencies, non-profit institutions, and contacting the TDD terminal on (202– WRITTEN SUBMISSIONS: In lieu of or in businesses and other for-profits. 205–1810). addition to participating in the hearing, Estimated completion time: 1 hour for BACKGROUND: Chapter 4 and Annex 401 interested parties are invited to submit the survey of State biological data and of the North American Free Trade written statements concerning the information bases; .5 hour for the Agreement (NAFTA), which entered matters to be addressed by the survey of taxonomic expertise; 1 hour into force on January 1, 1994, contain Commission in its report on this for the survey of systematics the rules of origin for application of the investigation. Commercial or financial collections. tariff provisions of the Agreement to information that a submitter desires the Annual responses: 500 for the survey of trade in goods. Commission to treat as confidential State biological data and information must be submitted on separate sheets of bases; 500 for the survey of taxonomic Section 202(q) of the North American paper, each clearly marked expertise; 500 for the survey of Free Trade Agreement Implementation ‘‘Confidential Business Information’’ at systematics collections. Act authorizes the President, subject to the top. All submissions requesting Annual burden hours: 500 for the the consultation and layover confidential treatment must conform survey of State biological data and requirements of section 103 of the Act, with the requirements of section § 201.6 information bases; 250 for the survey to proclaim such modifications to the of the Commission’s Rules of Practice of taxonomic expertise; 500 for the rules as may from time to time be agreed and Procedure (19 C.F.R. 201.6). All survey of systematics collections. to by the NAFTA countries. One of the written submissions, except for Bureau clearance officer: Don W. requirements set out in section 103 is confidential business information, will Minnich, (202) 482–4838. that the President obtain advice, be made available in the Office of the regarding any proposed modification in Secretary of the Commission for Dated: May 25, 1995. the Rules contained in Annex 401, from Doyle G. Frederick, inspection by interested parties. To be the United States International Trade assured of consideration by the Assistant Director. Commission. Commission, written statements relating [FR Doc. 95–13847 Filed 6–6–95; 8:45 am] In its report the Commission will, as to the Commission’s report should be BILLING CODE 4310±DP±M requested by the USTR in his letter of submitted to the Commission at the May 5, 1995, seek to provide advice on earliest practical date and should be the probable effect of the proposed received no later than the close of INTERNATIONAL TRADE revised rules of origin attached to the business on July 18, 1995. All COMMISSION letter. As requested, the Commission submissions should be addressed to the will seek to provide such advice by Secretary, United States International [Investigation 332±363] September 5, 1995. Copies of the Trade Commission, 500 E Street SW, Chemicals and Chemical Products: proposed revised rules, which cover the Washington, DC 20436. Persons with Probable Effect of Certain goods described in Chapters 28 through mobility impairments who will need Modifications to North American Free 38 of the Harmonized Tariff Schedule of special assistance in gaining access to Trade Agreement Rules of Origin the United States, will be available from the Commission should contact the Pertaining to Such Products the Office of the Secretary at the Office of the Secretary at 202–205–2000. Commission or from the Commission’s Issued: May 31, 1995. AGENCY: International Trade Internet web server (http:// By order of the Commission. Commission. www.usitc.gov). Donna R. Koehnke, ACTION: Institution of investigation and PUBLIC HEARING: A public hearing in Secretary. scheduling of public hearing. connection with the investigation will [FR Doc. 95–13903 Filed 6–6–95; 8:45 am] be held at the U.S. International Trade BILLING CODE 7020±02±P EFFECTIVE DATE: May 31, 1995. Commission Building, 500 E Street SW, SUMMARY: Following receipt on May 5, Washington, DC, beginning at 9:30 a.m. 1995, of a request from the United States on July 11, 1995. All persons shall have [Investigation No. 337±TA±349] Trade Representative (USTR), the the right to appear, by counsel or in Commission instituted investigation No. person, to present information and to be Certain Diltiazem Hydrochloride and 332–363, Chemicals and Chemical heard. Requests to appear at the public Diltiazem Preparations; Notice of Products: Probable Effect of Certain hearing should be filed with the Commission Decisions Affirming in Modifications to North American Free Secretary, United States International Part, Taking No Position in Part, and Trade Agreement Rules of Origin Trade Commission, 500 E Street SW, Vacating in Part an Initial Pertaining to Such Products, under Washington, DC, 20436, no later than Determination; Granting of a Joint section 332(g) of the Tariff Act of 1930 5:15 p.m. on June 28, 1995. Any Motion To Terminate Certain (19 U.S.C. 1332(g)). prehearing briefs (original and 14 Respondents on the Basis of a FOR FURTHER INFORMATION CONTACT: copies) should be filed not later than Settlement Agreement; Denial of a Information on industry sectors may be 5:15 p.m., June 28, 1995; the deadline Motion To Intervene obtained from Edmund Cappuccilli, for filing post-hearing briefs or AGENCY: International Trade Office of Industries (202–205–3368) or statements is 5:15 p.m., July 18, 1995. In Commission. Elizabeth Nesbitt, Office of Industries the event that, as of the close of business ACTION: Notice. (202–205–3355); and on legal aspects, on June 28, 1995, no witnesses are from William Gearhart, Office of the scheduled to appear at the hearing, the SUMMARY: Notice is hereby given that General Counsel (202–205–3091). The hearing will be cancelled. Any person the U.S. International Trade media should contact Margaret interested in attending the hearing as an Commission has determined to affirm O’Laughlin, Office of Public Affairs observer or non-participant may call the the claim interpretation and (202–205–1819). Hearing impaired Secretary to the Commission (202–205– infringement findings and to take no 30100 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices position on the issues of validity and was not infringed by any of INTERSTATE COMMERCE unenforceability in the initial respondents’ processes, that claim 1 was COMMISSION determination (ID) issued by the invalid as obvious under 35 U.S.C. 103, [No. 41573 1] presiding administrative law judge (ALJ) and that the ’035 patent was on February 1, 1995, in the above- unenforceable because of complainants’ Anacomp, Inc.; Crest Manufacturing captioned investigation in accordance inequitable conduct during Incorporated; Godfrey Marine; with Beloit Corporation v. Valmet Oy, reexamination proceedings before the Harrison International Incorporated; TVW Paper Machines, Inc. and the U.S. Patent and Trademark Office. In a Health and Personal Care Distribution United States International Trade separate order (Order No. 52), issued on Conference, Inc.; National Small Commission, 742 F.2d 1421 (Fed. Cir. the same date, the ALJ granted Shipments Traffic Conference, Inc.; 1984). The Commission has also vacated respondents’ motion for evidentiary and Truckpro Parts & Service, Inc.Ð as moot ALJ Order No. 52. Finally, the sanctions against complainants. Petition for Declaratory OrderÐCertain On March 30, 1995, the Commission Commission has determined to grant a Rates and Practices of Churchill Truck determined to review the following joint motion to terminate certain Lines, Inc. (Trans-Allied Audit issues in the ID: (1) Claim respondents on the basis of a settlement Company, Inc.) agreement, and to deny a motion to interpretation; (2) whether claim 1 of intervene in the investigation. the ’035 patent is infringed by AGENCY: Interstate Commerce FOR FURTHER INFORMATION CONTACT: respondents’ processes; (3) whether Commission. Cynthia P. Johnson, Esq., Office of the claim 1 of the ’035 patent is invalid as ACTION: Institution of declaratory order General Counsel, U.S. International obvious under 35 U.S.C. 103; (4) proceeding. Trade Commission, telephone 202–205– whether the ’035 patent is SUMMARY: 3098. unenforceable; and (5) Order No. 52. The Commission is instituting Order No. 52 was considered to be part a proceeding under 49 U.S.C. 10321 and SUPPLEMENTARY INFORMATION: On of the ID. The Commission posed 5 U.S.C. 554(e) to determine whether February 1, 1993, Tanabe Seiyaku Co., several specific questions for the parties. the collection of undercharges by or on Ltd. (Tanabe) and Marion Merrell Dow, The Commission also requested behalf of Churchill Truck Lines, Inc. Inc. (MMD) (collectively information on the status of the Abic (Churchill) or Trans-Allied Audit ‘‘complainants’’) filed a complaint respondents. Company, Inc. (Trans-Allied), based on under section 337 alleging unfair acts in On April 13, 1995, complainants and recharacterization of the service the importation and sale of diltiazem Abic Ltd. and Plantex U.S.A. (‘‘the Abic provided by Churchill as regular route hydrochloride and diltiazem respondents’’) filed a joint motion to instead of irregular route, constitutes an preparations (‘‘diltiazem’’) by nine terminate the investigation as to the unreasonable practice under 49 U.S.C. proposed respondents: (1) Abic Ltd. of Abic respondents on the basis of a 10701(a). Netanya, Israel (‘‘Abic’’); (2) Gyma settlement agreement. Additionally, on DATES: Laboratories of America, Inc. of Garden Comments by or on behalf of April 13, 1995, Mr. James Gambrell filed Churchill or Trans-Allied and any City, New York (‘‘Gyma’’); (3) a motion to intervene in the Profarmaco Nobel SRL of Milan, Italy; person desiring to submit comments in investigation. support of their position are due June (4) Mylan Pharmaceuticals, Inc. of This action is taken under the 27, 1995. Petitioners’ replies and any Morgantown, West Virginia; (5) Mylan authority of section 337 of the Tariff Act comments from all other interested Laboratories, Inc. of Pittsburgh, of 1930 (19 U.S.C. 1337) and persons are due July 7, 1995. Pennsylvania (collectively referred to as Commission interim rule 210.56 (19 the ‘‘Profarmaco respondents’’); (6) CFR 210.56). ADDRESSES: The original and 10 copies Orion Corporation Fermion of Espoo, Copies of the Commission’s Order, the of comments and replies, which should Finland; (7) Interchem Corporation of Commission Opinion in support thereof, refer to No. 41573, must be sent to: Paramus, New Jersey; (8) Copley the nonconfidential version of the ID, Office of the Secretary, Case Control Pharmaceuticals, Inc. of Canton, and all other nonconfidential Branch, Interstate Commerce Massachusetts; and (9) Rhone-Poulenc documents filed in connection with this Commission, 1201 Constitution Avenue, Rorer, Inc. of Collegeville, Pennsylvania investigation are or will be available for N.W., Washington, DC 20423. One copy (collectively referred to as the ‘‘Fermion inspection during official business of comments by or on behalf of respondents’’). Complainants alleged hours (8:45 a.m. to 5:15 p.m.) in the Churchill or Trans-Allied must be infringement of claim 1 of U.S. Letters Office of the Secretary, U.S. served simultaneously on petitioners’ Patent 4,438,035 (‘‘the ’035 patent’’). On International Trade Commission, 500 E representatives: Richard H. Streeter, March 25, 1993, the Commission voted Street S.W., Washington, D.C. 20436, 1401 Eye Street, N.W., Suite 500, to institute an investigation of the telephone 202–205–2000. Hearing- Washington, DC 20005; and Daniel J. complaint of Tanabe and MMD. 58 FR impaired persons are advised that Sweeney, 1750 Pennsylvania Ave., NW., 16846 (March 31, 1993). information on this matter can be Washington, DC 20006. On May 6, 1993, complainants moved obtained by contacting the to amend the complaint and notice of Commission’s TDD terminal on 202– 1 This notice embraces docket Nos. 41561, 41567, 205–1810. 41574, and 41575, which involve separately filed investigation to add Plantex U.S.A., Inc. petitions seeking declaratory relief from as a respondent. On May 20, 1993, the Issued: June 1, 1995. undercharges sought by Churchill Truck Lines, Inc., ALJ issued an ID amending the By order of the Commission. so that the parties in those proceedings may be complaint and notice of investigation to served with a copy of this notice. Those Donna R. Koehnke, proceedings are not consolidated with this one, but add Plantex as a respondent. Plantex Secretary. parties to those proceedings may request that their participated in the investigation with [FR Doc. 95–13902 Filed 6–6–95; 8:45 am] proceedings be held in abeyance pending resolution respondent Abic, Inc. of this proceeding. In No. 41561, a procedural On February 1, 1995, the presiding BILLING CODE 7020±02±P schedule was established by decision served April 18, 1995; in No. 41567, a procedural schedule was ALJ issued his final ID finding that there established by decision served April 28, 1995; and was no violation of section 337. He in Nos. 41574 and 41575, procedural schedules will found that claim 1 of the ’035 patent be established unless the parties request otherwise. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30101 FOR FURTHER INFORMATION CONTACT: that, during its many years of service, nonexistent words ‘‘in irregular route Marty Schwimmer, (202) 927–6289. Churchill never contended that the service.’’ They emphasize that there is [TDD for the hearing impaired: (202) discounts did not apply to shipments no such qualification within the four 927–5721.] moving to and from all points for which corners of Churchill’s tariff rule and SUPPLEMENTARY INFORMATION: On May it held irregular route authority, that, as numerous courts have reasoned, 11, 1995, Anacomp, Inc.; Crest regardless of whether or not they also tariff construction requires that ‘‘the Manufacturing Incorporated; Godfrey happen to be points for which it held four corners of the instrument must be Marine; Harrison International regular route authority. Only after visualized and all the pertinent Incorporated; Health and Personal Care Churchill ceased operations did its provisions considered together, giving Distribution Conference, Inc.; National auditor assert that the published effect so far as possible to every word, Small Shipments Traffic Conference, discounts were not applicable to clause, and sentence therein contained.’’ Inc.; and Truckpro Parts & Service, Inc. shipments moving to irregular route United States v. Missouri-Kansas-Texas (petitioners) jointly filed a petition for points that were also named in R. Co., 194 F.2d 777, 778 (5th Cir. 1952). declaratory order pursuant to the Churchill’s regular route certificates. Petitioners contend that the shipper is provisions of 5 U.S.C. 554(e). Petitioners Petitioners contend that Trans- entitled to the benefit of the doubt if the request that the Commission take Allied’s theory of recovery is fatally tariff is ambiguous, and that, because expedited or emergency action in order flawed. They claim, that, under the there are no such qualifying words to to bring an immediate halt to what they Supreme Court’s decision in Hewitt- alert the potential shipper to the Robins, Incorporated v. Eastern Freight- characterize as an aggressive possibility that it would be forced to pay Ways, 371 U.S. 84 (1962), if two routes undercharge campaign being waged by higher rates for shipments handled are available (in that case, one interstate Trans-Allied on behalf of Churchill pursuant to Churchill’s regular route and the other intrastate), the carrier is against the petitioners and hundreds of certificates, rather than its irregular legally obligated to use the lower-rated other shippers. route certificate, Trans-Allied’s route. The Court, according to For many years, Churchill maintained construction must be rejected. ‘‘[A]ny petitioners, specifically condemned the discount tariffs applicable to services ambiguity or reasonable doubt as to use of principles of misrouting to collect provided to points for which it held their meaning must be resolved against a higher tariff charge as being an irregular route authority. Petitioners the carriers.’’ Id. at 778. Citing Carrier unlawful practice under the Interstate Service, Inc. v. Boise Cascade Corp., 795 state that prior to ceasing operations in Commerce Act and the common law. early 1994, Churchill filed tariffs with F.2d 640, 642 (8th Cir. 1986), petitioners Petitioners argue that Churchill’s argue that, to the extent that Churchill’s this Commission [ICC CHTL 681, ICC shippers are entitled to the lowest CHTL 604 and ICC CHTL 627 series] tariffs ‘‘would lend themselves to published tariff rate between two points. misinterpretation by the ordinary users that included a note providing that Citing Hewitt-Robins, Inc. v. Eastern of such tariffs,’’ they must be construed ‘‘* * * the discounts named herein Freight-Ways, 302 I.C.C. 173, 174 (1957), in favor of the shippers. apply only to and from irregular route petitioners conclude that ‘‘when no points actually served direct by CHTL.’’ routing instructions are given, a motor Finally, petitioners submit copies of Beginning in January 1995, carrier has a duty to select the least correspondence to shippers in which petitioners, who had previously used expensive route, unless it is an Churchill’s representatives adopted an Churchill’s services, began receiving unreasonable one.’’ 302 I.C.C. at 174. interpretation consistent with dunning letters from Trans-Allied See also Great Atlantic & Pacific Tea petitioners’ position that the published accompanied by ‘‘balance due freight Co. v. Ontario Frt. Lines, 46 M.C.C. 237, discount ‘‘applies only on shipments bills.’’ Subsequently, further letters were 239, 242–243 (1946); Mentzner Stove either originating at or destined to all of received from Trans-Allied claiming: Repairs Co. v. Ranft, 47 M.C.C. 151, 154 Churchill’s direct interstate points.’’ that the discounts provided to shippers (1947); Murray Co. of Texas, Inc. v. Petitioners argue that such by Churchill’s Tariff ICC CHTL 682 Marron, Inc., 54 M.C.C. 442, 444 (1952). representations clearly indicate that contain an unambiguous provision that They urge that the application of the Churchill intended that shippers would restricted their application to shipments Hewitt-Robins principles to the receive the discount, and that without moving to and/or from irregular route Churchill situation leaves no room for such competitive rates these shipments service points only; that legal effect Trans-Allied to argue that Churchill is would have been shipped via other must be given to every provision of a entitled to a non-discounted rate carriers. tariff; that the movements covered by because, if it handled shipments in Because it appears that a controversy the balance due bills were less-than- regular route service, rather than its exists within the meaning of 5 U.S.C. truckload shipments moving to points irregular route service, it did so without 554(e), the petition will be granted and specified in Churchill’s regular route consulting the shipper. Petitioners, a declaratory order proceeding certificate and to which Churchill therefore, ask the Commission to declare instituted. Churchill and Trans-Allied provided a regular less-than-truckload that Churchill had an affirmative duty to will be directed to file comments on the service; that under the filed rate route its shippers’ movements in issues presented, and the petitioners doctrine reaffirmed in Maislin Indus. v. irregular route service in order to take will be directed to file reply comments. Primary Steel, 497 U.S. 116 (1990), advantage of its published tariff All other interested persons may also Churchill must seek payment of the discounts, and that, if it routed them in file comments. The parties are undiscounted rates on shipments to non-discounted regular route service, specifically directed to address whether regular route shipping points; and that Churchill engaged in an unreasonable the collection of undercharges by or on shippers are not entitled to discounts off practice. behalf of Churchill Truck Lines, Inc. or the applicable class rates. Petitioners also argue that Trans- Trans-Allied Audit Company, Inc., The facts as presented by petitioners Allied’s position is not supported by the based on recharacterization of the suggest that the services involved could literal wording of the tariff note cited service provided by Churchill, as have been performed under either above. They contend that Trans-Allied’s regular route instead of irregular route, Churchill’s regular route or its irregular rationale must be rejected because it constitutes an unreasonable practice route authority. Petitioners point out erroneously reads into the note the under 49 U.S.C. 10701(a). 30102 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices This action will not significantly Branch, Interstate Commerce Decided: May 31, 1995. affect either the quality of the human Commission, 1201 Constitution Avenue, By the Commission, David M. Konschnik, environment or the conservation of NW., Washington, DC 20423, and (2) Director, Office of Proceedings. energy resources. Janet H. Gilbert, P. O. Box 5062, Vernon A. Williams, It is ordered: Rosemont, IL 60017–5062. Secretary. 1. A declaratory order proceeding is FOR FURTHER INFORMATION CONTACT: [FR Doc. 95–13947 Filed 6–6–95; 8:45 am] instituted to consider the issues raised Joseph H. Dettmar, (202) 927–5660. BILLING CODE 7035±01±P in this proceeding. [TDD for the hearing impaired: (202) 2. Comments by or on behalf of 927–5721.] Churchill or Trans-Allied are due June [Finance Docket No. 32701] SUPPLEMENTARY INFORMATION: 27, 1995. Additional information is contained in 3. Petitioners’ replies and any Portage Private Industry Council, Inc., the Commission’s decision. To purchase comments from all other interested and Akron Barberton Cluster Railway a copy of the full decision, write to, call, persons are due July 7, 1995. CompanyÐAcquisition and Operation or pick up in person from: Dynamic 4. A copy of this notice will be served ExemptionÐConsolidated Rail Concepts, Inc., Interstate Commerce on the parties in Nos. 41561, 41567, Corporation Commission Building, 1201 41574, and 41575. Constitution Avenue, NW., Room 2229, Portage Private Industry Council, Inc. Decided: May 25, 1995. Washington, DC 20423. Telephone: (PPIC), a noncarrier ‘‘non-profit By the Commission, Chairman Morgan, (202) 289–4357/4359. [Assistance for coalition of business and professional Vice Chairman Owen, and Commissioners the hearing impaired is available leaders engaged in economic Simmons and McDonald. through TDD services (202) 927–5271.] development activities in Portage Vernon A. Williams, County, Ohio,’’ and Akron Barberton Decided: May 24, 1995. Secretary. Cluster Railway Company (ABCR), a By the Commission, Chairman Morgan, [FR Doc. 95–13934 Filed 6–6–95; 8:45 am] class III rail carrier, have jointly filed a Vice Chairman Owen, and Commissioners verified notice under 49 CFR Part 1150, BILLING CODE 7035±01±P Simmons and McDonald. Subpart D—Exempt Transactions for Vernon A. Williams, PPIC to acquire from Consolidated Rail [Docket No. AB±402 (Sub-No. 3X)] Secretary. Corporation and for ABCR to operate a [FR Doc. 95–13933 Filed 6–6–95; 8:45 am] 7.23-mile rail line between milepost Fox Valley & Western Ltd.Ð BILLING CODE 7035±01±P 182.82±, at Ravenna, and milepost Abandonment ExemptionÐin Portage 190.05±, at Kent, in Portage County, OH. and Waupaca Counties, WI; Exemption [Finance Docket No. 32696] The transaction was to have been and Notice of Interim Trail Use or consummated on or about May 15, 1995. Abandonment Northern Ohio & Western Railway, If the verified notice contains false or AGENCY: Interstate Commerce L.L.C.ÐOperation ExemptionÐLine of misleading information, the exemption Commission. Sandusky County-Seneca County-City is void ab initio. Petitions to reopen the proceeding to revoke the exemption ACTION: Notice of exemption. of Tiffin Port Authority under 49 U.S.C. 10505(d) may be filed Northern Ohio & Western Railway, SUMMARY: The Commission, under 49 at any time. The filing of a petition to U.S.C. 10505, exempts from the prior L.L.C. (NOWRR), a noncarrier, has filed reopen will not stay the exemption’s approval requirements of 49 U.S.C. a notice of exemption to operate over effectiveness. An original and 10 copies 10903–10904 the abandonment by Fox 25.5 miles of rail line presently owned of all pleadings, referring to Finance Valley & Western Ltd. of an 18.5-mile by Sandusky County-Seneca County- Docket No. 32701, must be filed with rail line extending between milepost City of Tiffin Port Authority (Port of the Office of the Secretary, Case Control 61.0 in Scandinavia and milepost 79.5 Tiffin), from milepost 41.5 near Tiffin, Branch, Interstate Commerce in Plover, in Portage and Waupaca Seneca County, OH to milepost 67.0 Commission, Washington, DC 20423. In near Woodville Township, Sandusky addition, a copy of each pleading must Counties, WI, subject to standard labor 1 protective conditions, environmental County, OH. NOWRR’s operation of the be served on Norman L. Christley, 215 conditions, and, between mileposts 61.0 line was expected to be consummated West Garfield Road, Suite 230, Aurora, and 78.6, a trail use condition. on May 16, 1995, and will result in OH 44202, and Terence M. Hynes, NOWRR becoming a class III carrier. DATES: Provided no formal expression of Sidley & Austin, 1722 Eye Street, N.W., Any comments must be filed with the Washington, DC 20006. intent to file an offer of financial Commission and served on: Louis E. Decided: May 30, 1995. assistance has been received, this Gitomer, Ball, Janik & Novack, Suite exemption will be effective on July 7, 1035, 1101 Pennsylvania Ave., N.W., By the Commission, David M. Konschnik, Director, Office of Proceedings. 1995. Formal expressions of intent to Washington, DC 20004. 1 file an offer of financial assistance This notice is filed under 49 CFR Vernon A. Williams, under 49 CFR 1152.27(c)(2) must be 1150.31. If the notice contains false or Secretary. filed by June 19, 1995; petitions to stay misleading information, the exemption [FR Doc. 95–13948 Filed 6–6–95; 8:45 am] must be filed by June 22, 1995; requests is void ab initio. Petitions to revoke the BILLING CODE 7035±01±P for a public use condition must be filed exemption under 49 U.S.C. 10505(d) by June 27, 1995; and petitions to may be filed at any time. The filing of reopen must be filed by July 3, 1995. a petition to revoke will not DEPARTMENT OF JUSTICE ADDRESSES: Send pleadings referring to automatically stay the transaction. Docket No. AB–402 (Sub-No. 3X) to: (1) Information Collections Under Review Office of the Secretary, Case Control 1 The Port of Tiffin acquired the line segment from Consolidated Rail Corporation through a The Office of Management and Budget 1 See Exempt. of Rail Abandonment—Offers of feeder line application in Sandusky County, et al.— (OMB) has been sent the following Finan. Assist., 4 I.C.C.2d 164 (1987). Feeder Line Appl.—Conrail, 6 I.C.C.2d 568 (1990). collection(s) of information proposals Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30103 for review under the provisions of the (5) 1,000 annual burden hours. limited to subject matter directly related Paperwork Reduction Act (44 U.S.C. (6) Not applicable under Section to the DAB’s agenda, unless otherwise Chapter 35) and the Paperwork 3504(h) of Public Law 96–511. permitted by the Chairman. Reduction Reauthorization Act since the Public comment on this item is Any member of the public may file a last list was published. Entries are encouraged. written statement for the record grouped into submission categories, Robert B. Briggs, concerning the DAB and its work before with each entry containing the Department Clearance Officer, United States or after the meeting. Written statements following information: Department of Justice. for the record will be furnished to each (1) The title of the form/collection; [FR Doc. 95–13857 Filed 6–6–95; 8:45 am] DAB member for their consideration (2) The agency form number, if any, BILLING CODE 4410±01±M and will be included in the official and the applicable component of the minutes of a DAB meeting. Written Department sponsoring the collection; statements must be type written on 81⁄2′′ (3) Who will be asked or required to Federal Bureau of Investigation × 11′′ xerographic weight paper, one respond, as well as a brief abstract; side only, and bound only by a paper (4) An estimate of the total number of DNA Advisory Board Meeting clip (not stapled). All pages must be respondents and the amount of time numbered. Statements should include estimated for an average respondent to Pursuant to the provisions of the Federal Advisory Committee Act, notice the Name, Organizational Affiliation, respond; Address, and Telephone number of the (5) An estimate of the total public is hereby given that the DNA Advisory Board (DAB) will meet on June 22, 1995, author(s). Written statements for the burden (in hours) associated with the record will be included in minutes of collection; and from 11 am until 5 pm at the Arlington Renaissance Hotel, Master’s Ballroom, the meeting immediately following the (6) An indication as to whether receipt of the written statement, unless Section 3504(h) of Public Law 96–511 950 North Stafford Street, Arlington, VA 22203. All attendees will be admitted the statement is received within three applies. weeks of the meeting. Under this Comments and/or suggestions only after displaying personal circumstance, the written statement will regarding the item(s) contained in this identification which bears a photograph be included with the minutes of the notice, especially regarding the of the attendee. following meeting. Written statements estimated public burden and associated The DAB’s objectives and scope are: for the record should be submitted to response time, should be directed to the To develop, and if appropriate, the DFE. OMB reviewer, Mr. Jeff Hill on (202) periodically revise, recommended Inquiries may be addressed to the 395–7340 And to the Department of standards for quality assurance to the DFE, Mr. James J. Kearney, Chief, Justice’s Clearance Officer, Mr. Robert B. Director of the FBI, including standards Scientific Analysis Section, Laboratory Briggs, on (202) 514–4319. If you for testing the proficiency of forensic Division, Tenth Street Northwest, anticipate commenting on a form/ laboratories, and forensic analysts, in Washington, DC 20535, (202) 324–4416, collection, but find that time to prepare conducting analyses of DNA; To FAX (202) 324–1462. such comments will prevent you from recommend standards to the Director of prompt submission, you should notify the FBI which specify criteria for quality Dated: June 2, 1995. the OMB reviewer And the Department assurance and proficiency tests to be James J. Kearney, of Justice Clearance Officer of your applied to the various types of DNA Chief, Scientific Analysis Section, Federal intent as soon as possible. Written analyses used by forensic laboratories; Bureau of Investigation. comments regarding the burden and, To make recommendations to the [FR Doc. 95–13868 Filed 6–6–95; 8:45 am] estimate or any other aspect of the Director of the FBI for a system for BILLING CODE 4410±02±P collection may be submitted to Office of grading proficiency testing performance Information and Regulatory Affairs, to determine whether a laboratory is Office of Management and Budget, performing acceptably. DEPARTMENT OF LABOR Washington, DC 20503, And to Mr. The topics discussed at this meeting Robert B. Briggs, Department of Justice include: clarification of the range of Pension and Welfare Benefits Clearance Officer, Systems Policy Staff/ topics which may be considered within Administration Information Resources Management/ the scope of the DAB; discussion of by- laws and procedures related to the [Prohibited Transaction Exemption 95±40; Justice Management Division, Suite 850, Exemption Application No. D±09694, et al.] WCTR, Washington, DC 20530. administration of the DAB; relationship of the DAB to the Technical Working New Collection Grant of Individual Exemptions; Group on DNA Analysis Methods; and, General Motors Hourly-Rate (1) Albania Claims Program. background presentations on the status Employees Pension Plan, et al. (2) FCSC Form 1–95. Foreign Claims of forensic DNA analysis in the United Settlement Commission, United States States, including accreditation and AGENCY: Pension and Welfare Benefits Department of Justice. certification programs. Administration, Labor. (3) Primary: Individuals or The meeting is open to the public on ACTION: Grant of Individual Exemptions. households. Others: Not-for-profit a first-come, first seated basis. Anyone institutions. Information collected will wishing to address the DAB must notify SUMMARY: This document contains be used as the basis for determining the Designated Federal Employee (DFE) exemptions issued by the Department of entitlement of claimants to awards in writing at least twenty-four hours Labor (the Department) from certain of payable by the Department of the before the DAB meets. The notification the prohibited transaction restrictions of Treasury out of Albania Compensation must include the requestor’s name, the Employee Retirement Income Fund in claims of U.S. nationals against organizational affiliation, a short Security Act of 1974 (the Act) and/or the Albanian government for statement describing the topic to be the Internal Revenue Code of 1986 (the expropriation of property. addressed, and the amount of time Code). (4) 500 annual respondents at 2 hours requested. Oral statements to the DAB Notices were published in the Federal per response. will be limited to five minutes and Register of the pendency before the 30104 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices Department of proposals to grant such Plan) and the General Motors Hourly- objected to the granting of an exemption exemptions. The notices set forth a Rate Employees Pension Plan, Saturn for the EFP transaction. However, these summary of facts and representations Individual Retirement Plan for individuals subsequently withdrew contained in each application for Represented Team Members, and Saturn their adverse comments after a exemption and referred interested Personal Choices Retirement Plan for discussion of the issues involved with a persons to the respective applications Non-Represented Team Members representative of the Department. for a complete statement of the facts and (together, the Hourly Plan) which The third letter received by the representations. The applications have occurred on November 30, 1993 in the Department was a general inquiry from been available for public inspection at amount of approximately $730 million, representatives of the GM Alumni Club the Department in Washington, D.C. The provided the following conditions were in San Diego, California, requesting notices also invited interested persons met: clarification of the EFP transaction. The to submit comments on the requested (a) The terms of the EFP transaction Department responded to this inquiry exemptions to the Department. In were at least as favorable to the Plans as by telephone and answered the addition the notices stated that any the terms which would have been particular questions raised by these interested person might submit a available in an arm’s-length EFP commenters. written request that a public hearing be transaction involving unrelated parties; No other comment letters were held (where appropriate). The (b) Each Plan received a price in the received by the Department on this applicants have represented that they EFP transaction which was equal to the matter. have complied with the requirements of midpoint between the highest Accordingly, the Department has the notification to interested persons. independent bid and lowest determined to grant the exemption. No public comments and no requests for independent offer for buying and selling FOR FURTHER INFORMATION CONTACT: Mr. a hearing, unless otherwise stated, were the futures involved on November 30, E.F. Williams of the Department at (202) received by the Department. 1993, based on EFP quotations obtained The notices of proposed exemption 219–8194. (This is not a toll-free from at least six independent broker- number.) were issued and the exemptions are dealers capable of engaging in such an being granted solely by the Department EFP at the time of the transaction; Analex Corporation (Analex), Analex because, effective December 31, 1978, (c) Wells Fargo Institutional Trust Corporation Retirement Plan (the Plan) section 102 of Reorganization Plan No. Company, N.A. (WFITC), as an Located in Brook Park, OH; Exemption 4 of 1978 (43 FR 47713, October 17, independent fiduciary for the Salaried [Prohibited Transaction Exemption 95–41; 1978) transferred the authority of the Plan, determined that the EFP Application No. D–09786] Secretary of the Treasury to issue transaction was prudent and in the best The restrictions of sections 406(a), exemptions of the type proposed to the interests of the Salaried Plan and its 406(b)(1) and (b)(2) of the Act and the Secretary of Labor. participants and beneficiaries at the sanctions resulting from the application Statutory Findings time of the transaction; of section 4975 of the Code, by reason (d) WFITC monitored the EFP of section 4975(c)(1)(A) through (E) of In accordance with section 408(a) of transaction on behalf of the Salaried the Act and/or section 4975(c)(2) of the the Code shall not apply retroactively to Plan and took whatever action was the past loan (the Past Loan) made by Code and the procedures set forth in 29 necessary to safeguard the interests of CFR part 2570, subpart B (55 FR 32836, the Plan to Analex (the Employer) in the Salaried Plan at the time of the accordance with the following 32847, August 10, 1990) and based upon transaction; the entire record, the Department makes conditions: (e) General Motors Investment (1) The terms and conditions of the the following findings: Management Corporation (GMIMCo), as (a) The exemptions are Past Loan were at least as favorable to the fiduciary for the Hourly Plan, the Plan as those obtainable by the Plan administratively feasible; determined that the EFP transaction was (b) They are in the interests of the under similar circumstances in arm’s- prudent and in the best interests of the plans and their participants and length transactions with unrelated Hourly Plan and its participants and beneficiaries; and parties; (c) They are protective of the rights of beneficiaries at the time of the (2) The amount of the Plan’s assets the participants and beneficiaries of the transaction; and involved in the Past Loan did not plans. (f) GMIMCo monitored the EFP exceed 15% of the Plan’s total assets at transaction on behalf of the Hourly Plan any time during the transaction; General Motors Hourly-Rate Employees and took whatever action was necessary (3) The Past Loan was at all times Pension Plan; General Motors to safeguard the interests of the Hourly secured by collateral which was valued Retirement Program for Salaried Plan at the time of the transaction. at not less than 200% of the value of the Employees; Saturn Individual EFFECTIVE DATE: The exemption is Past Loan; Retirement Plan for Represented Team effective November 30, 1993. (4) Prior to the disbursement under Members; and Saturn Personal Choices For a more complete statement of the the Loan agreement, an independent, Retirement Plan for Non-Represented facts and representations supporting the qualified fiduciary determined on behalf Team Members (collectively, the Plans) Department’s decision to grant this of the Plan that the Past Loan was in the Located in New York, New York; exemption, refer to the notice of best interests of the Plan as an Exemption proposed exemption (the Proposal) investment for the Plan’s portfolio, and [Prohibited Transaction Exemption 95–40; published on March 13, 1995, at 60 FR protective of the Plan and its Application Nos. D–09694 thru D–09697] 13467. participants and beneficiaries; The restrictions of section 406(b)(2) of WRITTEN COMMENTS: The Department (5) The independent, qualified the Act shall not apply to the stock received three comment letters on the fiduciary reviewed the terms and index ‘‘exchange of futures for Proposal. conditions of the exemption and the physicals’’ (EFP) transaction between Two of the comment letters, Past Loan, including the applicable the General Motors Retirement Program submitted by individuals who are interest rate, the sufficiency of the for Salaried Employees (the Salaried participants in the Salaried Plan, collateral, the financial condition of the Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30105 Employer and compliance with the 15% part of an arrangement under which a policies of a person other than an of Plan assets maximum loan amount, fiduciary of a Plan, acting with the individual. prior to approving the disbursement knowledge of WMC or its affiliate, For a more complete statement of the under the Loan agreement; causes a transaction to be made with or facts and representations supporting the (6) The fiduciary is monitoring the for the benefit of a party in interest (as Department’s decision to grant this Past Loan to ensure compliance with the defined in section 3(14) of the Act) with exemption, refer to the notice of terms and conditions of the exemption respect to the Plan; proposed exemption published on April and the Loan agreement; (e) At the time of its acquisition of a 7, 1995 at 59 FR 38205. (7) The Plan suffers no loss as a result loan or participation interest therein, no TEMPORARY NATURE OF EXEMPTION: This of the Past Loan; and Plan will have more than 25% of its exemption is effective only for those (8) The Past Loan will be fully repaid assets invested in construction and transactions entered into within eight by May 31, 1995. permanent mortgages; years of the date on which the Final For a more complete statement of the (f) WMC and its affiliates do not and Grant of this exemption is published in facts and representations supporting the will not act as fiduciaries with regard to the Federal Register. any Plan investing in permanent and Department’s decision to grant this FOR FURTHER INFORMATION CONTACT: Gary exemption, refer to the notice of construction loans and interests therein H. Lefkowitz of the Department, proposed exemption published on April as described in this exemption; and telephone (202) 219–8881. (This is not (g) WMC shall maintain or will cause 7, 1995 at 60 FR 17821. a toll-free number.) TEMPORARY NATURE OF EXEMPTION: This to be maintained, for the duration of any exemption is effective for the period loan or participation interest therein Welborn Clinic Employees’ Retirement from July 12, 1994 through May 31, sold to a Plan pursuant to this Plan (the Plan) Located in Evansville, 1995, the date by which the Past Loan exemption, such records as are Indiana; Exemption will be repaid. necessary to determine whether the [Prohibited Transaction Exemption 95–43; conditions of this exemption have been FOR FURTHER INFORMATION CONTACT: Exemption Application No. D–09890] met. The records mentioned above must Virginia J. Miller of the Department, The restrictions of sections 406(a), be unconditionally available at their telephone (202) 219–8971. (This is not 406(b)(1) and (b)(2) of the Act and the customary location for examination for a toll-free number.) sanctions resulting from the application purposes reasonably related to of section 4975 of the Code, by reason Washington Mortgage Corporation, Inc. protecting rights under the Plans, during of section 4975(c)(1)(A) through (E) of (WMC) Located in Seattle, Washington; normal business hours, by: Any trustee, the Code, shall not apply to the sale by Exemption investment manager, employer of Plan the Plan of certain improved real participants, employee organization [Prohibited Transaction Exemption 95–42; property (the Property) located in whose members are covered by a Plan, Exemption Application No. D–09814] Evansville, Indiana, to WANC Leasing participant or beneficiary of a Plan. I. The restrictions of section 406(a) of II. The restrictions of section 406(a) of Company, a party in interest with the Act and the sanctions resulting from the Act and the sanctions resulting from respect to the Plan; provided the the application of section 4975 of the the application of section 4975 of the following conditions are satisfied: (A) All terms and conditions of the Code, by reason of section 4975(c)(1)(A) Code by reason of section 4975 (c)(1)(A) transaction are no less favorable to the through (D) of the Code, shall not apply through (D) of the Code shall not apply Plan than those which the Plan could to: 1) the sale, exchange or transfer to any transactions to which such obtain in an arm’s-length transaction between WMC and its affiliates and restrictions would otherwise apply with an unrelated party; certain employee benefit plans (the merely because WMC or any of its (B) The Plan receives a cash purchase Plans) of certain construction loans or affiliates is deemed to be a party in price of no less than the greater of (1) participation interests therein to non- interest with respect to a Plan by virtue $8,555,000, or (2) the Property’s fair party in interest entities; and 2) the sale, of providing services to the Plan in exchange or transfer between WMC and market value as of the sale date; and connection with the subject loan (C) The Plan does not incur any its affiliates and the Plans of any transactions (or because it has a construction or permanent loan made by expenses with respect to the transaction. relationship to such service provider For a more complete statement of the a Plan to a party in interest, and the described in section 3(14)(F), (G), (H), or resulting extension of credit therefrom, facts and representations supporting (I) of the Act), solely because of the this exemption, refer to the notice of provided that: ownership of a loan or participation (a) The terms of the transactions are proposed exemption published on interest therein as described in this March 13, 1995 at 60 FR 13473. not less favorable to the Plans than the exemption by such Plan. terms generally available in arm’s-length III. Definitions. For purposes of this WRITTEN COMMENTS: The Department transactions between unrelated parties; exemption, received one written comment, (b) Such sales, exchanges or transfers (a) An ‘‘affiliate’’ of WMC includes— submitted by a Plan participant, and no are expressly approved by a Plan (1) Any person directly or indirectly requests for a hearing. The Department fiduciary independent of WMC and its through one or more intermediaries, forwarded the comment to the affiliates who has authority to manage controlling, controlled by, or under applicant, the Citizens National Bank of or control those Plan assets being common control with WMC, Evansville as trustee of the Plan (the invested in mortgages or participation (2) Any officer, director, employee, Trustee), for responses to the points interests therein; relative of, or partner in any such raised therein. The points raised by the (c) No investment management, person, and comment, and the Trustee’s responses, advisory, underwriting fee or sales (3) Any corporation or partnership of are summarized as follows: commission or similar compensation is which such person is an officer, (1) The commenter states that paid to WMC or any of its affiliates with director, partner or employee. improvements have been made to the regard to such sale, exchange or transfer; (b) The term ‘‘control’’ means the Property since December 31, 1993, the (d) The decision to invest in a loan or power to exercise a controlling date of one of the two appraisals a participation interest therein is not influence over the management or utilized by the parties to determine the 30106 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices minimum purchase price for the The Neiman Marcus Group, Inc., of the Act, which among other things Property. The commenter believes that a Employee Savings Plan (the Plan), require a fiduciary to discharge his reappraisal of the Property should be Located in Chestnut Hill, duties respecting the plan solely in the required before the exemption is Massachusetts; Exemption interest of the participants and granted. [Prohibited Transaction Exemption 95–44; beneficiaries of the plan and in a prudent fashion in accordance with The Trustee responds that the Exemption Application No. D–09917] section 404(a)(1)(B) of the Act; nor does Property will be reappraised prior to The restrictions of sections 406(a), it affect the requirement of section final determination of the purchase 406 (b)(1) and (b)(2) of the Act and the sanctions resulting from the application 401(a) of the Code that the plan must price, as described in the Summary. The operate for the exclusive benefit of the Trustee and the representatives of of section 4975 of the Code, by reason of sections 4975(c)(1) (A) through (E) of employees of the employer maintaining WANC Leasing Company (WANC) have the plan and their beneficiaries; agreed that as part of the sale the Code, shall not apply to (1) Loans to the Plan (the Loans) by The Neiman (2) These exemptions are transaction the Property is to be supplemental to and not in derogation reappraised by both C. David Matthews Marcus Group, Inc., the sponsor of the Plan, with respect to guaranteed of, any other provisions of the Act and/ and William R. Bartlett II, and if the or the Code, including statutory or mean of the two reappraisals is higher investment contract number 62638 (the GIC) issued by Confederation Life administrative exemptions and than $8,555,000 the purchase price will Insurance Company (Confederation transactional rules. Furthermore, the be increased to such higher mean. As Life); and (2) the Plan’s potential fact that a transaction is subject to an part of the application for the proposed repayment of the Loans (the administrative or statutory exemption is exemption, the Trustee explained that Repayments); provided that the not dispositive of whether the the agreement with respect to the following conditions are satisfied: transaction is in fact a prohibited purchase price for the Property resulted (A) No interest and/or expenses are transaction; and from arm’s-length negotiations between paid by the Plan; (3) The availability of these the Trustee and WANC over a two- (B) The Loans are made in lieu of exemptions is subject to the express month period. amounts due the Plan under the terms condition that the material facts and of the GIC; representations contained in each (2) The commenter states that a application accurately describes all recently-approved casino river boat (C) The Repayments are restricted to cash proceeds paid to the Plan by material terms of the transaction which project will affect values of real estate in is the subject of the exemption. downtown Evansville in ways which Confederation Life and/or any state guaranty association or other should be taken into consideration in Signed at Washington, DC, this 2nd day of responsible third party making payment June, 1995. establishing the purchase price of the with respect to the GIC (the GIC Ivan Strasfeld, Property. Proceeds), and no other Plan assets are Director of Exemption Determinations, The Trustee again notes that the used to make the Repayments; and Pension and Welfare Benefits Administration, Property will be reappraised by (D) The Repayments will be waived to U.S. Department of Labor. Matthews and Bartlett prior to final the extent the Loans exceed the GIC [FR Doc. 95–13911 Filed 6–6–95; 8:45 am] determination of the purchase price. Proceeds. BILLING CODE 4510±29±P The Trustee states that any increase in For a more complete statement of the the Property’s value attributable to the facts and representations supporting casino river boat project will be this exemption, refer to the notice of [Application No. D±09909, et al.] reflected in the reappraisals. The proposed exemption published on April 14, 1995 at 60 FR 1909. Proposed Exemptions; Phillips Trustee further maintains, however, that Petroleum Company its own investigation into the matter WRITTEN COMMENTS: The Department indicates that the site of the river boat received one written comment and no AGENCY: Pension and Welfare Benefits development, in the southwest corner of requests for a hearing. The comment Administration, Labor. downtown, is too far from the Property’s was submitted by a Plan participant ACTION: Notice of proposed exemptions. location, in the northeast section of who expressed support for the proposed downtown, to affect the value of the exemption. After consideration of the SUMMARY: This document contains Property. entire record, the Department has notices of pendency before the determined to grant the exemption. Department of Labor (the Department) of (3) The commenter, referring to the FOR FURTHER INFORMATION CONTACT: proposed exemptions from certain of the Summary’s description of WANC as a Ronald Willett of the Department, prohibited transaction restriction of the partnership with 65 general partners, telephone (202) 219–8881. (This is not Employee Retirement Income Security states that the actual number of general a toll-free number.) Act of 1974 (the Act) and/or the Internal partners is in excess of 65. Revenue Code of 1986 (the Code). General Information The Trustee responds that the Written Comments and Hearing The attention of interested persons is comment is correct and that the actual Requests number of general partners is 80. directed to the following: (1) The fact that a transaction is the All interested persons are invited to After careful consideration of the subject of an exemption under section submit written comments or request for entire record, the Department has 408(a) of the Act and/or section a hearing on the pending exemptions, determined to grant the exemption. 4975(c)(2) of the Code does not relieve unless otherwise stated in the Notice of FOR FURTHER INFORMATION CONTACT: a fiduciary or other party in interest or Proposed Exemption, within 45 days Ronald Willett of the Department, disqualified person from certain other from the date of publication of this telephone (202) 219–8881. (This is not provisions to which the exemptions Federal Register Notice. Comments and a toll-free number.) does not apply and the general fiduciary request for a hearing should state: (1) responsibility provisions of section 404 The name, address, and telephone Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30107 number of the person making the statement of the facts and September 30, 1994, Phillips had 74,300 comment or request, and (2) the nature representations. shareholders and 18,796 employees. of the person’s interest in the exemption 2. The Plan, of which Phillips is the Phillips Petroleum Company (Phillips), and the manner in which the person sponsor, is a defined contribution plan Located in Bartlesville, OK; Proposed having 15,394 participants and total would be adversely affected by the Exemption exemption. A request for a hearing must assets of $1.27 billion as of May 16, also state the issues to be addressed and [Application No. D–09909] 1994. The trustee of the Plan (the include a general description of the The Department is considering Trustee) is Bankers Trust Company of evidence to be presented at the hearing. granting an exemption under the New York, New York. A request for a hearing must also state authority of section 408(a) of the Act 3. The Plan permits participants to the issues to be addressed and include and section 4975(c)(2) of the Code and direct the investment of their account a general description of the evidence to in accordance with the procedures set balances among several investment be presented at the hearing. forth in 29 CFR Part 2570, Subpart B (55 funds (the Funds) and to receive FR 32836, 32847, August 10, 1990). If participant loans from their accounts. ADDRESSES: All written comments and the exemption is granted, the Generally, any regular employee on the request for a hearing (at least three restrictions of sections 406(a), 406 (b)(1) payroll of Phillips is eligible to copies) should be sent to the Pension and (b)(2) of the Act and the sanctions participate in the Plan except non- and Welfare Benefits Administration, resulting from the application of section managerial retail outlet marketing Office of Exemption Determinations, 4975 of the Code by reason of section employees. Plan participants may have Room N–5649, U.S. Department of 4975(c)(1) (A) through (E) of the Code, up to 15 percent of their pay deposited Labor, 200 Constitution Avenue, NW., shall not apply to (1) The proposed in the Plan each month. The first 5 Washington, DC 20210. Attention: making of interest-free loans to the percent is designated as regular deposits Application No. stated in each Notice of Thrift Plan of Phillips Petroleum with any excess being designated as Proposed Exemption. The applications Company (the Plan) by Phillips, the supplemental deposits. Deposits may be for exemption and the comments Plan sponsor pursuant to the terms of a further designated by a participant as received will be available for public credit facility arrangement; and (2) the ‘‘before-tax’’ or ‘‘after-tax’’ deposits. inspection in the Public Documents proposed repayment of such loans by Before-tax deposits represent participant Room of Pension and Welfare Benefits the Plan to Phillips. contributions made pursuant to an Administration, U.S. Department of This proposed exemption is election by the participant under section Labor, Room N–5507, 200 Constitution conditioned on the following 401(k) of the Code to have his or her Avenue, NW., Washington, DC 20210. requirements: salary reduced in exchange for the Notice to Interested Persons (a) Each loan executed under the contribution. Before-tax deposits are proposed credit facility arrangement participant contributions to the Plan Notice of the proposed exemptions provides short-term funds to the Plan in that are made from participant earnings will be provided to all interested connection with inter-fund transfers, prior to the payment of Federal or state persons in the manner agreed upon by withdrawals and participant loans and taxes. After-tax deposits are Plan the applicant and the Department permits the orderly disposal of Phillips contributions made by a participant within 15 days of the date of publication common stock. from the participant’s pay after Federal in the Federal Register. Such notice (b) Each loan made under the and state taxes have been paid. Plan shall include a copy of the notice of proposed credit facility arrangement is participants are allowed to change their proposed exemption as published in the unsecured and no interest, commissions investment directions and deposit rates Federal Register and shall inform or expenses are paid by the Plan. only during designated enrollment (c) In the event of a loan default or interested persons of their right to periods. delinquency, Phillips has no recourse comment and to request a hearing 4. Employee deposits are placed in a against the Plan. (where appropriate). special investment fund called the (d) Each loan is initiated, accounted SUPPLEMENTARY INFORMATION: ‘‘Temporary Investment Fund.’’ The The for and administered by an independent deposits are initially invested in certain proposed exemptions were requested in fiduciary who monitors the terms and short-term securities for up to 45 days applications filed pursuant to section conditions of the exemption, if granted. 408(a) of the Act and/or section after receipt by the Trustee. Then, the 4975(c)(2) of the Code, and in Summary of Facts and Representations deposits and earnings thereon are paid accordance with procedures set forth in 1. Phillips, which maintains its into four other Funds, namely, Funds A, 29 CFR Part 2570, Subpart B (55 FR principal place of business in B, E or F as directed by the participant, 32836, 32847, August 10, 1990). Bartlesville, Oklahoma, was and invested as follows: Effective December 31, 1978, section incorporated in the State of Delaware on a. In Fund A, a commingled trust 102 of Reorganization Plan No. 4 of June 13, 1917. Phillips is engaged in government/corporate bond index fund 1978 (43 FR 47713, October 17, 1978) various business activities ranging from held by Wells Fargo Institutional Trust transferred the authority of the Secretary worldwide petroleum exploration and Company. of the Treasury to issue exemptions of production to the production and b. In Fund B which holds Phillips the type requested to the Secretary of distribution of chemicals. Phillips is common stock. Labor. Therefore, these notices of also a leader in research and c. In Fund E, a Standard and Poor’s proposed exemption are issued solely development and it holds 3,400 patents equity index commingled fund held by by the Department. in technology that support company the Trustee. The applications contain business lines. As of December 31, 1993, d. In Fund F, a commingled money 1 representations with regard to the Phillips had assets of approximately market fund managed by the Trustee. proposed exemptions which are $10.9 billion, liabilities of 1 The applicant represents that investments by the summarized below. Interested persons approximately $7.8 billion, annual Plan in Fund E and Fund F are covered by and are referred to the applications on file revenues totaling $12.5 billion and net comply with section 408(b)(8) of the Act. However, with the Department for a complete income of $243 million. As of Continued 30108 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices In addition to the above, there are two before the monthly Valuation Date. The Participants may not make a withdrawal other Funds that comprise the trust transfer will be effective on the next on the same Valuation Date that the loan funds. They are Fund C and Fund D. Valuation Date. is processed, even if the withdrawal Fund C is composed primarily of b. Withdrawals from Funds. If the form is submitted first. Phillips common stock. Fund D, which participant wishes to withdraw assets 7. To effect the aforementioned is closed to new deposits, holds from a Fund, the procedure for transfers, withdrawals or participant guaranteed investment contracts. withdrawal is essentially the same as loans, the Trustee is required to Phillips contributes 25 percent of an that to transfer Funds. The participant liquidate assets held in the Fund or employee’s regular deposits to Fund B must complete a withdrawal form and Funds from which the proceeds are and 15 percent of regular deposits to deliver it to the Plan Administrator by needed. In this regard, the Plan any of the other investment Funds. The the last business day before the monthly document provides that the Trustee interest of a participant in each Fund is Valuation Date. The withdrawal is must take reasonable steps to invest represented by units allocated to such effective as of the Valuation Date and it deposits received for Funds B and C in participant. is usually paid within two weeks. If the Phillips common stock as soon as 5. The Plan allows a participant to participant intends to have the assets reasonably possible provided, however, elect a direct rollover of most paid to an IRA or a qualified plan, the that up to $10 million of cash equivalent distributions to an individual retirement participant must provide the Plan investments may be maintained in the account (the IRA) or to another tax Administrator with descriptive Funds to effect transfers, withdrawals qualified plans. The Plan also provides information concerning such plan or and loans on the next regular Valuation for participant loans as well as for IRA, including the name and address. Date. The Trustee must take reasonable transfers among certain of the Funds. In The participant must also verify that the steps to effect transfers, withdrawals or this regard, the Plan does not permit recipient plan or IRA will accept the participant loans from Funds B and C 5 transfers to Fund C, Fund D or the direct payment from the Plan. within 5 business days (on which both Temporary Investment Fund.2 However, c. Participant Loans. Assuming the the Trustee and The New York Stock it does allow transfers from these Funds participant requests a participant loan, Exchange are in business) following the with limited exceptions.3 such participant must be an active appropriate Valuation Date. The Trustee 6. Phillips represents that the right to employee of Phillips with a vested is also required to spread the sales of transfer monthly from Fund to Fund account in the Plan of $2,000 or more. Phillips common stock that will be used and to borrow from the Plan has given A participant may have up to two to effect the transfers, withdrawals or participants greater control of their plan regular loans (any loan except a home participant loans ratably over the investments. Thus, for any valuation loan) and one home loan outstanding at remaining trading days before the next date (the Valuation Date) (i.e., the first any one time. The maximum amount of regular Valuation Date.6 However, if the working day for the Trustee and The any loan is limited to the lesser of: number of shares which are to be sold New York Stock Exchange following the $50,000 less the highest loan balance in would result in ratable sales of less than 14th of each month), participants may the last 12 months (determined as of the 10,000 shares a day, the Trustee is not elect (to the extent permitted by the previous month’s Valuation Date) or 50 required to sell less than 10,000 shares Plan) to transfer their account balances percent of the vested account balance per day. from one investment alternative to less the current outstanding loan To the extent that the cash necessary another, to withdraw funds or to borrow balance for all loans, with values to effect the transfers, withdrawals and a portion of their account. As of the determined as of the previous month’s participant loans within the 5 day Valuation Date, Phillips common stock Valuation Date. A participant may not trading period exceeds $10 million, the will be valued based on the closing sales apply for a loan if he or she has the Trustee is permitted to borrow funds to prices for such stock. The steps that a maximum number of loans outstanding, provide sufficient liquidity to Funds B participant may undertake in effecting has borrowed the maximum amount in and C. Expenses and other costs transfers, withdrawals or participant the last 12 months or has an outstanding attributable to such borrowings will be loans are described as follows: loan that is delinquent. The minimum allocated to Funds B and C. a. Inter-Fund Transfers. In order to amount of any single loan is $1,000.4 8. To bridge the gap between the transfer assets from one Fund to A participant may apply for a immediate need for assets to fund another, a participant must complete a participant loan by telephone, then sign transfers, withdrawals or participant standard transfer form applicable to all a transaction authorization form loans and the disposal of Phillips transfers or withdrawals. The transfer approved by the Plan Administrator and common stock, the Trustee entered into form must be delivered to the Plan consent to irrevocable payroll a one-year, renewable revolving credit Administrator by the last business day deductions that will provide the amount facility arrangement with NationsBank necessary to repay the loan. Loan of Dallas, Texas on July 14, 1993. By its the Department expresses no opinion herein on applications can be made only by terms, the credit facility arrangement whether such investments satisfy the terms and initially permitted the Trustee, on conditions of section 408(b)(8) of the Act. telephone during the first 10 calendar 2 For example, with respect to the Temporary days of each month. Loans will be behalf of the Plan, to borrow up to $50 Investment Fund, the applicant represents that its processed once a month on the purpose is to hold participant contributions until applicable Valuation Date. Proceeds will 5 Although transfers are restricted from Fund C, they are transferred to the elected investment Fund. be paid within two to three weeks after withdrawals are permitted of vested company Due to the short-term nature of this Fund, the contributions. Loans can be taken from Fund C after applicant explains that participants are not entitled the date the loan is processed. all of the other Funds have been depleted subject to transfer deposits to the Temporary Investment to the loan limitation rules in the Plan. Fund from any other Fund. 4 The applicant represents that the Plan’s 6 Although the Department expresses no opinion 3 In the case of Fund C, the applicant explains participant loan provisions are designed and herein on the requirement that the Trustee spread that participants may make a one-time transfer from administered to comply with section 408(b)(1) of the sales of Phillips common stock over the Fund C after retirement. In the case of Fund D, the the Act and applicable regulations. However, the remaining trading days before the next regular applicant represents that a participant may not Department expresses no opinion herein on Valuation Date, it notes that Trustee’s decision to transfer from Fund D except to transfer upon the whether such loans satisfy the terms and conditions spread stock sales should be in the interests of the expiration of such participant’s Class Year of section 408(b)(1) of the Act and the regulations Plan and consistent with the provisions of section (guaranteed investment contract) Account. promulgated thereunder. 404 of the Act. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30109 million on a short-term and unsecured 10. Under its proposed credit facility be avoided if Phillips were permitted to basis. Interest is charged on a sliding arrangement, Phillips will extend an make similar, short-term extensions of scale margin above the London initial line of credit of $25 million. The credit to the Plan on an interest-free Interbank Offered Rate. The Plan is line of credit may be renewed annually basis. required to repay each loan in cash by Phillips and the Plan. Each loan Consistent with relevant Plan within 30 days of its making with made thereunder will be unsecured and provisions, the Trustee states that it will proceeds from the sale of Phillips no administrative fees or interest will be be responsible for determining when common stock. In addition, charged to the Plan in connection with and how much to borrow and to cause NationsBank charges the Plan a any of the loans. Each loan will be the Plan to repay each loan within a 31 commitment fee of .10 percent of any repaid within 31 days of its making. day period. The Trustee represents that unused amount of funds and a margin Funds for repaying the loans will be it will not receive an additional fee or of .25 percent over NationsBank’s actual derived from the Trustee’s sale of stock other compensation from the Plan as the cost of funds. held in Funds B and C. Assets held in result of the proposed credit facility The Trustee has drawn upon the the other investment Funds will not be arrangement between the Phillips and credit facility arrangement three times, utilized for such repayments. Further, the Plan. resulting in loans to the Plan in the Phillips will have no recourse against In view of the above, the Trustee following amounts over the following the Plan or against any participant in concludes that the proposed interest- time frames: (a) $3.3 million for 10 days; the event of a loan default or free loan program is in the best interest (b) $850,000 for 12 days; and (c) $10,000 delinquency and it will also not charge of the Plan and its participants and for 8 days. As of March 10, 1995, the any late fees. beneficiaries. The Trustee believes that Plan had repaid all principal for the 11. The Trustee will serve on behalf such arrangement will result in cost loans, including interest and expenses of the Plan as the independent fiduciary savings to the Plan and enable the Plan totaling $94,144. Although the credit and, in such capacity, it will activate to complete transactions in a timely facility arrangement was expected to and administer the proposed credit manner. Further, the Trustee asserts that expire in July 1994, it has been facility arrangement. The Trustee its ongoing, independent involvement extended by NationsBank until July 12, represents that it is a leading provider in and oversight of the program will 1995. However, the credit facility of global financial services and that it provide protection for the Plan and its amount has been reduced from $50 has been providing services to employee participants and beneficiaries. million to $25 million. benefit plans since 1927. As of March 12. In summary, it is represented that 10, 1995, the Trustee represents that it 9. The Plan wishes to terminate its the proposed transactions will satisfy had employee benefit plan assets under credit facility arrangement with the statutory criteria for an exemption management of over $165 billion and NationsBank. Therefore, Phillips under section 408(a) of the Act because: serves as a trustee for more than $115 requests an administrative exemption (a) Each loan executed under the billion in defined contribution plan from the Department in order that it proposed credit facility arrangement assets. As of December 31, 1994, the will provide short-term funds to the may provide the Plan with a similar Trustee states that it provided trust/ lending arrangement. Phillips represents Plan in connection with inter-fund custody services to 575 clients with transfers, withdrawals and participant that it is aware that Prohibited total assets under administration of Transaction Exemption (PTE) 80–26 (45 loans and it will permit the orderly approximately $394 billion. disposal of Phillips common stock. FR 28545, April 29, 1980) permits The Trustee represents that it is (b) Each loan made under the interest-free loans to a plan by a party familiar with the Plan and its proposed credit facility arrangement in interest. In this regard, Phillips notes investment portfolios since it has access will be unsecured and no interest, that PTE 80–26 permits an unsecured to information regarding Plan assets and commissions or expenses will be paid loan by a party in interest to a plan for can ascertain the extent to which the by the Plan. a purpose incidental to the ordinary proposed credit facility arrangement (c) In the event of a loan default or operation of the plan and for a period will affect the Plan’s investment needs. delinquency, Phillips will have no not exceeding 3 days. If the loan The Trustee also represents that it is recourse against the Plan. proceeds are used only for the payment independent of Phillips. In this regard, (d) Each loan will be initiated, of operating expenses of the plan, the Trustee states that during 1994, the accounted for and administered by the including the payment of benefits, fees paid to it by Phillips represented Phillips explains that no time limit is less than one percent of its total Trustee, which will also monitor the imposed under PTE 80–26. fiduciary and funds management terms and conditions of the exemption, In view of the foregoing, Phillips revenues. if granted. represents that the extent to which PTE The Trustee explains that the Plan FOR FURTHER INFORMATION CONTACT: Ms. 80–26 would cover the proposed credit and its trust document were amended in Jan D. Broady of the Department, facility arrangement is unclear. Phillips 1993 to permit the credit facility telephone (202) 219–8881. (This is not believes that the inter-fund transfers and arrangement with NationsBank. In view a toll-free number.) participant loans that would be initially of its experience in negotiating and Universal Underwriters Group Thrift funded by its proposed extension of monitoring the NationsBank credit Plan (the Plan), Located in Overland credit may not be viewed as ordinary facility on behalf of the Plan, the Park, Kansas; Proposed Exemption operating expenses of the Plan under Trustee states that it is fully familiar PTE 80–26. Even if viewed as ordinary with the terms and costs associated with [Application No. D–09947] operating expenses, Phillips states that such arrangements. The Trustee points The Department is considering it is not clear whether the loans could out that it has had to resort to the granting an exemption under the be repaid within 3 days inasmuch as the NationsBank credit facility arrangement authority of section 408(a) of the Act Plan documents require the Trustee to on only a small number of occasions in and section 4975(c)(2) of the Code and spread sales of stock ratably over a Plan the past 18 months. However, the costs in accordance with the procedures set month to prevent sales from negatively associated with using the facility and forth in 29 CFR part 2570, subpart B (55 impacting the market. assuring its continued availability could FR 32836, 32847, August 10, 1990). If 30110 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices the exemption is granted, the in interest-paying contracts with particular interest payment due, from restrictions of sections 406(a), 406(b)(1) insurance companies. As of December Confederation or any other party making and (b)(2) of the Act and the sanctions 31, 1994, the Stable Interest Fund held payment with respect to Confederation’s resulting from the application of section ten guaranteed investment contracts and obligations under the GIC. In addition to 4975 of the Code, by reason of section several other interest bearing contracts, the Loans required to guarantee interest 4975(c)(1)(A) through (E) of the Code as well as approximately $74,413 in a payments, the Employer is also shall not apply to (1) the proposed deposit account. The GIC, which was proposing a final Loan upon the GIC’s extensions of credit (the Loans) to the issued on February 10, 1994, is part of final maturity date to the extent that Plan from Universal Underwriters the Stable Interest Fund. The GIC is a Confederation fails to pay the full Insurance Company (the Employer), single-deposit non-participating amount due. The amount of interest with respect to a guaranteed investment contract which allows the Plan to make accrual and the final maturity payment contract (the GIC) issued by benefit-responsive withdrawals to fund due will be determined on the basis of Confederation Life Insurance Company benefit payments, investment fund the GIC’s principal plus interest at the (Confederation); (2) the Plan’s potential transfers, hardship withdrawals and guaranteed rate, less previous repayment of the Loans upon the receipt participant loans (collectively, the withdrawals, as of the date of the Loan. by the Plan of payments under the GIC; Withdrawal Events). The terms of the 4. The Loans and their repayments and (3) the assignment by the Plan to GIC provide for interest on the will be made pursuant to a written the Employer of all claims or causes of $5,500,000 principal amount at a agreement (the Loan Agreement) action it may have against the Plan’s guaranteed interest rate of 6.12% over a between the Plan and the Employer. The former GIC placement advisor for period of 61 months. Interest payments Plan and the Employer will also enter recommending that the Plan purchase are to be made annually to the Plan on into a separate agreement (the the GIC; provided the following April 1 (beginning April 1, 1995), up to Assignment Agreement) under which conditions are satisfied: the scheduled maturity date of April 1, the Plan will agree to assign to the (A) All terms and conditions of such 1999. As of June 30, 1994, the GIC had Employer any and all claims or causes transaction are no less favorable to the an accumulated book value of of action it may have as holder of the Plan than those which the Plan could $5,615,769.50. GIC against the Plan’s former GIC obtain in arm’s-length transactions with 2. Confederation is a Canadian placement adviser, Buck Pension Fund unrelated parties; corporation doing business in the Services, Inc. and its employees, agents, (B) No interest or expenses are paid United States through branches in and related entities (collectively referred by the Plan in connection with the Michigan and Georgia. The Employer to as Buck). The Employer’s recovery proposed transaction; represents that on August 11, 1994, the under the Assignment Agreement will (C) The Loans will be repaid only out Canadian insurance regulatory be limited to the amount necessary to of amounts paid to the Plan by authorities placed Confederation into a pay for litigation expenses and to pay Confederation, its successors, or any liquidation and winding-up process, off the Plan’s outstanding Loan balance. other responsible third party; and on August 12, 1994, the insurance If, pursuant to a cause of action assigned (D) Repayment of the Loans will be authorities of the State of Michigan by the Plan, the Employer recovers from waived to the extent that the Loans commenced legal action to place the Buck an amount exceeding such exceed GIC proceeds; U.S. operations of Confederation into a litigation expenses and the outstanding (E) A qualified independent fiduciary rehabilitation proceeding. As a result of Loan balance, the excess recovery will will represent the interests of the Plan these actions, Confederation suspended be transferred back to the Plan. throughout the duration of the proposed interest and maturity payments under 5. UMB (see section 1—above) has transaction; and the GIC and significantly limited the agreed to serve as independent fiduciary (F) The Employer’s recovery resulting circumstances under which on behalf of the Plan throughout the from a cause of action assigned to the withdrawals may be obtained from the duration of the transaction. UMB has Employer by the Plan will be limited to GIC. The Employer represents that it has acknowledged its duties, the amount necessary to pay for established a separate fund to which the responsibilities and liabilities in acting litigation expenses and to pay off the portion of the Stable Interest Fund as a fiduciary with respect to the Plan’s outstanding Loan balance and attributable to the GIC has been proposed transaction. UMB represents any excess recovery will be transferred transferred. This separate fund has been that the Employee Benefit Division of its back to the Plan. frozen so that no payments for Trust Department has extensive experience as a provider of services to Summary of Facts and Representations Withdrawal Events are permitted.7 3. The Employer proposes to advance employee benefit plans. UMB maintains 1. The Plan is a defined contribution interest free loans to the Plan at such that less than 1% of its business is 401(k) plan which provides for times and in such amounts as required associated with the Employer. As individual participant accounts and to fully realize the interest payments independent fiduciary, UMB has participant-directed investments. The due the Plan under the GIC, but only to concluded that the proposed transaction Plan had approximately 1,100 the extent that such amounts are not is in the best interests of, and protective participants as of December 30, 1993 timely paid by or on behalf of of, the rights of the Plan’s participants and $45,924,914.96 in assets as of June Confederation. Consequently, each Loan and beneficiaries. In this regard, UMB 30, 1994. The Plan trustee is United will be reduced by any amounts actually represents that the Loan Agreement will Missouri Bank, N.A. (UMB), located in received by the Plan, with respect to the ensure that the Plan suffers no Kansas City, Missouri. The Employer is investment loss from its investment in a Missouri corporation that provides 7 The Department notes that the decisions to the GIC, will make it possible for Plan insurance protection for automobile acquire and hold the GIC are governed by the Participants to gain access to their funds dealerships and other businesses. Under fiduciary responsibility requirements of Part 4, which have been frozen, and will allow the terms of the Plan, participants have Subtitle B, Title I of the Act. In this regard, the the Plan to reinvest the funds that were Department is not herein proposing relief for any the option of investing in any of six violations of Part 4 which may have arisen as a previously invested in the GIC. In investment funds, including the Stable result of the acquisition and holding of the GIC addition, UMB represents that the Interest Fund, which invests primarily issued by Confederation. proposed transaction is protective of the Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30111 Plan in that it provides the Plan with Loans will be made only from amounts BlackRock’s cross-trade practices, and the cash it needs to fund Withdrawal paid to the Plan by Confederation, its any other reasonably available Events and permits the Employer to successor, or any other third party; (5) information regarding the matter that pursue any claims that the Plan may If the payments by or on behalf of the authorizing fiduciary requests. have against the Plan’s former GIC Confederation are not sufficient to fully 2. (a) No more than three (3) business placement advisor. UMB represents repay the Loans, the Employer will have days prior to the execution of any cross- that, under this arrangement, the no recourse against the Plan, or against trade transaction, BlackRock must Employer, not the Plan bears the risk of any participants or beneficiaries of the inform an independent fiduciary of each an uncertain recovery on a claim that Plan, for the unpaid amount; and (6) Plan involved in the cross-trade would be expensive and time Repayment of the Loans will be waived transaction: (i) That BlackRock proposes consuming for the Plan to pursue. If the with respect to the amount by which the to buy or sell specified securities in a Employer does bring any claim or cause Loans exceed the amount the Plan cross-trade transaction if an appropriate of action against Buck, UMB has agreed receives from GIC proceeds. opportunity is available; (ii) the current to monitor the division of any recovery FOR FURTHER INFORMATION CONTACT: trading price for such securities; and obtained in such litigation to assure that Virginia J. Miller of the Department, (iii) the total number of shares to be the Plan receives the portion to which telephone (202) 219–8971. (This is not acquired or sold by each such Plan; it is entitled. a toll-free number.) (b) Prior to each cross-trade 6. The Employer represents that it transaction, the transaction must be wishes to enter into the proposed BlackRock Financial Management L.P. authorized either orally or in writing by transaction in order to protect the Plan (BlackRock), Located in New York, the independent fiduciary of each Plan participants from the effects of a New York; Proposed Exemption involved in the cross-trade transaction; prolonged rehabilitation process and [Application No. D–09963] (c) If a cross-trade transaction is from any potential loss resulting from The Department is considering authorized orally by an independent Confederation’s inability to meet its fiduciary, BlackRock will provide obligations under the GIC. In this granting an exemption under the authority of section 408(a) of the Act written confirmation of such regard, the Employer represents that the authorization in a manner reasonably proposed transaction would ensure the and section 4975(c)(2) of the Code and in accordance with the procedures set calculated to be received by such availability of benefits equivalent to independent fiduciary within one (1) those anticipated by participants prior forth in 29 CFR Part 2570, Subpart B (55 FR 32836, 32847, August 10, 1990). If business day from the date of such to the failure of Confederation, at no authorization; additional cost to participants. In the exemption is granted, the (d) The authorization referred to in addition, the Employer represents that restrictions of sections 406(a)(1)(A) and this paragraph (2) will be effective for a the Loans will contribute to the Plan’s 406(b)(2) of the Act and the sanctions period of three (3) business days; and ability to fund Withdrawal Events. The resulting from the application of section Employer also represents that the Loans 4975 of the Code, by reason of section (e) No more than ten (10) days after will be non-interest-bearing and the 4975(c)(1)(A) of the Code, shall not the completion of a cross-trade Plan will not incur any expenses in apply to the proposed cross-trading of transaction, the independent fiduciary connection with the proposed equity or debt securities between authorizing the cross-trade transaction transaction. various accounts managed by BlackRock must be provided a written confirmation 7. Repayment of the Loans under the (the Accounts) where at least one of the transaction and the price at which Agreement is limited to payments made Account involved in any cross-trade is the transaction was executed. to the Plan by or on behalf of an employee benefit plan account (Plan 3. (a) Each cross-trade transaction is Confederation, or its successor, or any Account) for which BlackRock acts as a effected at the current market value for other responsible third parties. No other fiduciary. the security on the date of the transaction, which shall be, for equity assets of the Plan will be available for Conditions and Definitions repayment of the Loans. If the payments securities, the closing price for the by or on behalf of Confederation are not This proposed exemption is subject to security on the date of the transaction, sufficient to fully repay the Loans, the the following conditions: and for debt securities, the fair market Loan Agreement provides that the 1. (a) A Plan’s participation in the value for the security as determined in Employer will have no recourse against cross-trade program is subject to a accordance with paragraph (b) of Rule the Plan, or against any participants or written authorization executed in 17a–7 issued by the Securities and beneficiaries of the Plan, for the unpaid advance by a fiduciary with respect to Exchange Commission (SEC) under the amount. To the extent the Plan receives each such Plan, the fiduciary of which Investment Company Act of 1940 (the GIC proceeds in excess of the total is independent of BlackRock; 1940 Act); amount of the Loans, such additional (b) The authorization referred to in (b) The cross-trade transaction is amounts will be retained by the Plan paragraph (a) is terminable at will effected at a price that: (1) In the case and allocated among the accounts of the without penalty to such Plan, upon of any equity security, is within 10 Plan’s participants. receipt by BlackRock of written notice percent of the closing price for the 8. In summary, the applicant of termination; and security on the day before the date on represents that the proposed transaction (c) Before an authorization is made, which BlackRock receives authorization satisfies the criteria of section 408(a) of the authorizing Plan fiduciary must be from the independent Plan fiduciary to the Act because: (1) The transaction will furnished with any reasonably available engage in the cross-trade transaction; preserve the Plan’s ability to timely information necessary for the and (2) in the case of any debt security, fund participants’ benefits; (2) The authorizing fiduciary to determine is within 10 percent of the fair market transaction will preserve any cause of whether the authorization should be value of the security on the last action that may exist against the Plan’s made, including (but not limited to) a valuation date preceding the date on GIC placement advisor; (3) The Plan copy of this exemption (if granted), an which BlackRock receives authorization will not incur any expenses with respect explanation of how the authorization by the independent Plan fiduciary to to the transaction; (4) Repayment of the may be terminated, a description of engage in the cross-trade transaction as 30112 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices determined in accordance with SEC 7. All Plans that participate in the manages the assets in accordance with Rule 17a–7(b) of the 1940 Act; cross-trade program have total assets of investment parameters that are designed (c) The securities involved in the at least $25 million. to invest the assets in various types of cross-trade transaction are those for 8. BlackRock receives no fee or other fixed-income securities, such as which there is a generally recognized compensation (other than its agreed mortgage-backed securities, U.S. market; upon investment management fee) with Government securities or corporate debt respect to any cross-trade transaction. securities. BlackRock primarily manages (d) The cross-trade transaction is 9. BlackRock is a discretionary such Plan assets using duration effected only where the trade involves investment manager with respect to management techniques with the less than five (5) percent of the aggregate Plans participating in the cross-trade performance and composition of the average daily trading volume of the program. assets for the Plan Account measured securities which are the subject of the 10. For purposes of this proposed against a specified benchmark, such as transaction for the week immediately exemption: various Salomon Brothers, Lehman preceding the authorization of the (a) Cross-trade transaction means a Brothers or Merrill Lynch indices that transaction. A cross-trade transaction purchase and sale of securities between are selected by the Plan sponsor or other may exceed this limit only by express accounts for which BlackRock or an named fiduciary. The duration of the authorization of independent fiduciaries affiliate is acting as an investment assets held by the Plan Account will be on behalf of Plans affected by the manager; comparable to the portfolio specified by transaction, prior to the execution of the (b) Affiliate means any person directly the referenced benchmark. BlackRock cross-trade. or indirectly through one or more states that the objective factors 4. For all accounts participating in the intermediaries, controlling, controlled contained in or required by these cross-trading program, if the number of by, or under common control with investment parameters may not be units of a particular security which any BlackRock; changed or otherwise altered without accounts need to sell on a given day is (c) Plan Account means an account the prior written approval of the Plan less than the number of units of such holding assets of one or more employee sponsor or other named fiduciary. The security which any accounts need to benefit plans that are subject to the Act, types of securities held in these buy, or vice versa, the direct cross-trade for which BlackRock acts as a fiduciary. accounts are generally the same for each opportunity must be allocated among Summary of Facts and Representations Plan Account that retains BlackRock for the buying or selling accounts on a pro purposes of managing such an account, rata basis. 1. BlackRock is a Delaware limited although the specific mix of securities partnership with its principal office 5. (a) BlackRock furnishes the varies depending on the investment located in New York City. BlackRock authorizing Plan fiduciary at least once objectives of the particular Plan Management Partners L.P. (BMP) is the every three months, and not later than Account. general partner of BlackRock. The 45 days following the period to which 3. Securities sales and purchases for partners of BlackRock and BMP it relates, a report disclosing: (i) a list of Plan Accounts may result from either: executed an agreement with PNC Bank all cross-trade transactions engaged in (a) The active decision-making by on February 28, 1995, whereby all of the on behalf of the Plan; and (ii) with BlackRock’s account manager relating to interests in BlackRock and BMP were respect to each cross-trade transaction, new investments for the Plan Account; sold to a wholly-owned subsidiary of the prices at which the securities or (b) a change in the overall level of PNC Bank, N.A. In this regard, involved in the transaction were traded investment as a result of investments BlackRock continues to conduct its on the date of such transaction; and and withdrawals made to the Plan business in the same manner as it did Account by the Plan sponsor or other (b) The authorizing Plan fiduciary is prior to the sale. BlackRock provides a named fiduciary requiring a rebalancing furnished with a summary of the broad range of financial services to a of the account with transactions information required under this variety of clients, including involving the Plan Account’s existing paragraph 4(a) at least once per year. corporations, financial institutions, securities. Under either of these The summary must be furnished within registered investment companies and circumstances, BlackRock’s disposition 45 days after the end of the period to employee benefit plans. BlackRock of a particular security for one Plan which it relates, and must contain the serves as investment manager for a Account may involve a security that is following: (i) A description of the total substantial number of qualified pension desirable for another Plan Account, amount of Plan assets involved in cross- plans and currently has more than $24 presenting an opportunity to save trade transactions during the period; (ii) billion of assets under management. substantial dealer markups for both the a description of BlackRock’s cross-trade 2. With respect to the employee liquidating Plan Account and the practices, if such practices have benefit plans that will participate in the acquiring Plan Account. This saving changed materially during the period proposed cross-trading program (the could be effected by a cross-trade covered by the summary; (iii) a Plans), BlackRock will be acting as a transaction, which involves matching statement that the Plan fiduciary’s discretionary investment manager. The BlackRock’s sell orders for a particular authorization of cross-trade transactions Plan Accounts maintained by BlackRock day with its buy orders for the same day may be terminated upon receipt by are all considered ‘‘managed accounts’’ in nondealer transactions. BlackRock of the fiduciary’s written under which BlackRock and the sponsor The execution of such cross-trades notice to that effect; and (iv) a statement or other named fiduciary of the between various BlackRock accounts that the Plan fiduciary’s authorization of underlying Plan have agreed that the could involve trades between Plan the cross-trade transactions will investment of the assets in question will Accounts, or between Plan Accounts continue in effect unless it is be managed actively at the discretion of and investment companies managed by terminated. BlackRock, pursuant to written BlackRock, or between Plan Accounts 6. The cross-trade transaction does guidelines as to which types of and private institutional accounts not involve assets of any Plan securities to buy or sell for the account. managed by BlackRock. In this regard, established or maintained by BlackRock Under the investment guidelines for because BlackRock has special expertise or any of its affiliates. many of the Plan Accounts, BlackRock in fixed-income securities, registered Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30113 investment companies and institutional the cross- trading program may enable authorization will be terminable at will accounts for which BlackRock or an the Plan Accounts to obtain early upon written notice by the appropriate affiliate serves as the investment advisor opportunities to acquire or sell such independent Plan fiduciary. BlackRock also hold the same types of securities as securities at favorable prices. Therefore, will receive no fee or other the Plan Accounts, although in different by participating in the cross-trading compensation (other than its agreed combinations based on their particular program, BlackRock represents that the upon investment management fee) with investment objectives. Plan Accounts will incur substantially respect to any cross-trade transaction. 4. BlackRock proposes to take lower expenses for the particular Thus, a Plan will not pay any separate advantage of opportunities to eliminate transactions and will be better able to fees to BlackRock for cross-trading unnecessary third-party dealer markups effect purchase and sale transactions. services. No penalty or other charge will by cross-trading securities, whenever 6. BlackRock makes decisions be made as a result of the termination possible, directly between Plan regarding which securities to purchase of a Plan’s participation in the cross- Accounts or directly between Plan or sell for client accounts considering trading program. In addition, before any Accounts and other client accounts. all of the relevant facts and authorization is made by a Plan for BlackRock represents that comparable circumstances, including the participation in the cross-trading trades of such securities on the open composition of the portfolios and the program, BlackRock must provide the market between unrelated parties often liquidity requirements of the accounts. authorizing Plan fiduciary with all require dealer markups equal to BlackRock states that such decisions materials necessary to permit an between one-sixteenth to one percent of will not be influenced by the fact that evaluation of the program. These the price of the securities for each sale an opportunity for a cross-trade may be materials will include a copy of the or purchase transaction. BlackRock available. In this regard, BlackRock proposed exemption and final proposes to execute cross-trade represents that the matching of sale and exemption, if granted, an explanation of transactions on behalf of the Plan purchase orders for its accounts on any how the authorization may be Accounts without charging any particular day will be largely automatic. terminated, a description of BlackRock’s commissions or receiving any dealer With respect to the allocation of cross- cross-trading practices, and any other markups. trade opportunities among various available information that the 5. BlackRock represents that by accounts, including the Plan Accounts, authorizing Plan fiduciary may participating in the cross-trading BlackRock proposes to use a non- reasonably request. program, the Plan Accounts will benefit discretionary pro-rata allocation system. 8. In addition to requiring a general by not incurring the cost, in terms of For example, if the number of units of authorization of a Plan’s participation in price, of dealing with a person or firm a particular security that any accounts BlackRock’s cross-trading program, an acting as ‘‘market-maker’’ for the need to sell on a given day is less than independent fiduciary of each Plan particular security involved in the cross- the number of units of such security must specifically authorize each cross- trade transaction. This cost is generally which other accounts need to buy on trade transaction. Any such measured by the spread between the bid that date, the cross-trade opportunity authorization will be effective only for and offer prices for the security which would be allocated among the buying a period of three (3) business days and would be paid to the market-maker. The accounts on a pro-rata basis. The same will be subject to certain pricing Plan Accounts will also benefit under procedure would apply where the limitations (as discussed below in the cross-trading program by avoiding number of units of a particular security Paragraph 10). The authorization to false pricing differentials that result in to be sold by various accounts is more proceed with the transaction may be transactions with a market-maker where than the number of units of such either oral or written. If a cross-trade the securities in question are traded in security which other accounts need to transaction is authorized orally by an odd-lot sizes. For example, in the case buy on that date, so that in such independent fiduciary, BlackRock will of debt securities, BlackRock states that instances the cross-trade opportunity provide a written confirmation of such both buyer and seller will benefit by would be allocated among the selling authorization in a manner reasonably cross-trading because the securities accounts on a pro-rata basis. Thus, all calculated to be received by the involved will be priced either by accounts participating in BlackRock’s independent fiduciary within one (1) reference to the last sale price for the cross-trading program, including the business day from the date of the securities on the date of the transaction Plan Accounts, will have opportunities authorization. The Plan fiduciary will or, if no transactions have occurred that to participate on a proportional basis in be sent a written confirmation of the day, by averaging the spread between cross-trade transactions during the cross-trade, including the price at which the highest independent bid and lowest operation of the program. BlackRock it was executed, within ten (10) days of independent offer obtained from at least represents that this aspect of the cross- the completion of the transaction. two independent dealers, in accordance trading program will be part of the 9. BlackRock will provide the with SEC Rule 17a–7(b) of the 1940 Act information disclosed in writing to the authorizing Plan fiduciary with a report, (see Paragraph 10 below). Thus, in fiduciaries of the Plan Accounts prior to at least once every three (3) months and situations where an average of the their authorization for participation in not later than forty-five (45) days current bid/offer prices is used, the the program (as discussed further following the period to which it relates, seller will receive a higher price than below). that sets forth: (a) A list of all the cross- the dealers’ bid price and the buyer will 7. Under the requested exemption, trade transactions conducted on behalf pay a lower price than the dealers’ offer only Plans with at least $25 million in of the Plan Account during the previous price, which would not, in all instances, total assets will be eligible to participate period; and (b) with respect to each be the case in an open market in the cross-trading program. A Plan cross-trade transaction, the prices at transaction or a transaction directly fiduciary that is independent of which the subject securities were traded with a dealer. BlackRock states further BlackRock must provide written on the date of the transaction. Each Plan that where trading of a particular debt authorization allowing the Plan’s fiduciary will also be provided with a or equity security is ‘‘thin’’ (i.e. limited participation in the program before any summary of the quarterly reports, at number of securities available) or round specific cross-trade transactions can be least once a year and not later than 45 lots are not available, participation in executed for such Plan. This days after the end of the period to which 30114 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices it relates, that includes: (a) A independent fiduciary authorized the a fiduciary or other party in interest of description of the total amount of Plan transaction. disqualified person from certain other assets involved in cross-trade Finally, each cross-trade transaction provisions of the Act and/or the Code, transactions completed during the year; will be effected only where the trade including any prohibited transaction (b) a statement that the Plan fiduciary’s involves less than five (5) percent of the provisions to which the exemption does authorization to participate in the cross- aggregate average daily trading volume not apply and the general fiduciary trading program can be terminated of the securities which are the subject of responsibility provisions of section 404 without penalty upon BlackRock’s the transaction for the week of the Act, which among other things receipt of a written notice to that effect; immediately preceding the require a fiduciary to discharge his (c) a statement that the fiduciary’s authorization of the transaction. duties respecting the plan solely in the authorization of the Plan’s participation BlackRock states that a particular cross- interest of the participants and in the program will continue unless it trade transaction may exceed this limit beneficiaries of the plan and in a is terminated; and (d) a description of only by express authorization of prudent fashion in accordance with any material change in BlackRock’s independent fiduciaries on behalf of section 404(a)(1)(b) of the act; nor does cross-trade practices during the period Plans affected by the transaction, prior it affect the requirement of section covered by the summary. These reports to the execution of the cross-trade. 401(a) of the Code that the plan must will provide the Plan fiduciaries with a 11. In summary, the applicant operate for the exclusive benefit of the mechanism for monitoring the operation represents that the proposed employees of the employer maintaining of the cross-trade program. The transactions will satisfy the statutory the plan and their beneficiaries; applicant represents that the criteria of section 408(a) of the Act (2) Before an exemption may be authorization of each cross-trade will because, among other things: (a) An granted under section 408(a) of the Act prevent BlackRock from favoring one independent Plan fiduciary must and/or section 4975(c)(2) of the Code, account at the expense of another in the provide written authorization, the Department must find that the cross-trade transaction. terminable at will and without penalty, exemption is administratively feasible, 10. The securities involved in any for each Plan’s participation in the in the interests of the plan and of its cross-trade transaction will be only cross-trading program; (b) oral or participants and beneficiaries and those for which there is a generally written authorization must be provided protective of the rights of participants recognized market. BlackRock by the independent Plan fiduciary to and beneficiaries of the plan; represents that each cross-trade BlackRock prior to each cross-trade (3) The proposed exemptions, if transaction will be effected at the transaction; (c) all cross-trades will be granted, will be supplemental to, and current market value for the securities executed at the current market price for not in derogation of, any other on the date of the transaction. For all the security on the date of the provisions of the Act and/or the Code, equity securities, the current market transaction, as determined by an including statutory or administrative value shall be the closing price for the independent third party source; (d) a exemptions and transitional rules. security on the date of the transaction. cross-trade transaction will be effected Furthermore, the fact that a transaction For all debt securities, the current only if certain price requirements are is subject to an administrative or market value shall be the fair market satisfied; (e) all securities involved in statutory exemption is not dispositive of value of the security as determined on cross-trades will be ones for which there whether the transaction is in fact a the date of the transaction in accordance is a generally recognized market; (f) prohibited transaction; and with SEC Rule 17a–7 under the 1940 BlackRock will receive no commissions (4) The proposed exemptions, if Act. In this regard, SEC Rule 17a–7(b) or additional fees as a result of the granted, will be subject to the express contains four possible means of proposed cross-trades; (g) BlackRock condition that the material facts and determining ‘‘current market value’’ will provide periodic reporting on cross- representations contained in each depending on such factors as whether trade transactions to the participating application are true and complete, and the security is a reported security and Plan’s independent fiduciary; (h) Plans that each application accurately whether its principal market is an participating in the cross-trading describes all material terms of the exchange. This Rule is also applicable to program will realize savings on their transaction which is the subject of the registered investment companies for transactions due to the elimination of exemption. which BlackRock acts as an investment brokerage commissions, transaction fees advisor. and dealer markups; (i) the Plans Signed at Washington, DC, this 2nd day of In addition, BlackRock states that participating in the cross-trading June, 1995. each cross-trade transaction will be program will have assets of at least $25 Ivan Strasfeld, effected at a price that: (a) In the case million; and (j) the Plans participating Director of Exemption Determinations of any equity security, is within 10 in the cross-trading program will not Pension and Welfare Benefits Administration, U.S. Department of Labor. percent of the closing price for the include any employee benefit plan security on the day before the date on established or maintained by BlackRock [FR Doc. 95–13910 Filed 6–6–95; 8:45 am] which BlackRock receives authorization or its affiliates. BILLING CODE 4510±29±P from the independent Plan fiduciary to FOR FURTHER INFORMATION CONTACT: Mr. engage in the cross-trade transaction; E.F. Williams of the Department, and (b) in the case of any debt security, telephone (202) 219–8194. (This is not NATIONAL INSTITUTE FOR LITERACY is within 10 percent of the fair market a toll-free number.) value of the security on the last Agency Information Collection valuation date preceding the date on General Information Activities Under OMB Review which BlackRock receives authorization The attention of interested persons is AGENCY: National Institute for Literacy. by the independent Plan fiduciary to directed to the following: ACTION: Notice. engage in the cross-trade transaction. (1) The fact that a transaction is the This safeguard prevents BlackRock from subject of an exemption under section SUMMARY: In compliance with the effecting cross-trades at prices that were 408(a) of the Act and/or section Paperwork Reduction Act (44 U.S.C. not contemplated at the time the 4975(c)(2) of the Code does not relieve 3501 et seq.), this notice announces that Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30115 an Information Collection Request (ICR) Dated: Dated: June 2, 1995. have been shown to be the principal has been forwarded to the Office of Andrew J. Hartman, means of detecting containment leakage Management and Budget (OMB) for Director, NIFL. paths with the Type A tests confirming review and comment. The ICR describes [FR Doc. 95–14068 Filed 6–6–95; 8:45 am] the Type B and C test results. It is also the nature of the information collection BILLING CODE 6055±01±M noted that the licensee, as a condition and its expected cost and burden. of the proposed exemption, would DATES: Comments must be submitted on perform the visual containment or before June 16, 1995. NUCLEAR REGULATORY inspection although it is only required by Appendix J to be conducted in FOR FURTHER INFORMATION CONTACT: COMMISSION Susan Green at (202) 632–1509. conjunction with Type A tests. The NRC [Docket No. 50±255] staff considers that these inspections, SUPPLEMENTARY INFORMATION: though limited in scope, provide an Consumers Power Company; Title important added level of confidence in Palisades Plant Environmental the continued integrity of the Application for Literacy Leader Assessment and Finding of No containment boundary. The change will Fellowships which will provide Significant Impact not increase the probability or assistance to individuals pursing careers The U.S. Nuclear Regulatory consequences of accidents, no changes in adult education or literacy in the are being made in the types or amounts areas of instruction, management, Commission (the Commission) is considering issuance of an exemption of any effluents that may be released research, or innovation and adult new offsite, and there is no significant learners. Under the program, career from Facility Operating License No. DPR–20, issued to Consumers Power increase in the allowable individual or literacy workers and adult learners are cumulative occupational radiation applicants for fellowships. Company, (the licensee), for operation of the Palisades Plant located in Van exposure. Accordingly, the Commission Abstract Buren County, Michigan. concludes that there are no significant radiological environmental impacts The National Literacy Act of 1991 Environmental Assessment associated with the proposed action. established the National Institute for Identification of the Proposed Action With regard to potential Literacy and required that the Institute nonradiological impacts, the proposed award fellowships to engage in research, This Environmental Assessment has action involves features located entirely education, training, technical assistance, been prepared to address potential within the restricted area as defined in or other activities to advance the field environmental issues related to the 10 CFR Part 20. It does not affect of adult education or literacy, including licensee’s application of March 17, nonradiological plant effluents and has the training of volunteer literacy 1995, as supplemented April 26, 1995. no other environmental impact. providers at the national, State, or local The proposed action would exempt the Accordingly, the Commission concludes level. Evaluations to determine licensee from the requirements of 10 that there are no significant successful applicants will be made by a CFR Part 50, Appendix J, Paragraph nonradiological environmental impacts panel of literacy experts using the III.D.1.(a), to the extent that a one-time associated with the proposed action. published criteria. The Institute will use interval extension for the Type A test this information to make a maximum of (containment integrated leak rate test) Alternatives to the Proposed Action four fellowships for a period of no less by approximately 21 months from the Since the Commission has concluded than 3 nor more than 12 months of full- May 1995 refueling outage to the 1997 there is no measurable environmental time activity or the equivalent in less refueling outage would be granted. impact associated with the proposed than full-time participation. The Need for the Proposed Action action, any alternatives with equal or Burden Statement: The burden for greater environmental impact need not this collection of information is The proposed action is needed to be evaluated. As an alternative to the estimated at 4 hours per response. This permit the licensee to defer the Type A proposed action, the NRC staff estimate includes the time needed to test from the May 1995 refueling outage considered denial of the proposed review instructions, complete the form, to the 1997 refueling outage, thereby action. Denial of the application would and review the collection of saving the cost of performing the test result in no change in current information. and eliminating the test period from the environmental impacts. The Respondents: Individuals. critical path time of the outage. environmental impacts of the proposed Estimated Number of Respondent: Environmental Impact of the Proposed action and the alternative action are 100. similar. Estimated number of Responses Per Action Respondent: 1. The Commission has completed its Alternative Use of Resources Estimated Total Annual Burden on evaluation of the proposed action and This action does not involve the use Respondents: 400 hours. concludes that the proposed one-time of any resources not previously Frequency of Collection: One time. exemption would not increase the considered in the Final Environmental Send comments regarding the burden probability or consequences of accidents Statement for the Palisades Plant dated estimate, or any other aspect of the previously analyzed and the proposed June 1972 and its addendum dated information collection, including one-time exemption would not affect February 1978. suggestions for reducing the burden to: facility radiation levels or facility Susan Green, National Institute for radiological effluents. The licensee has Agencies and Persons Consulted Literacy, 800 Connecticut Ave., NW, analyzed the results of previous Type A In accordance with its stated policy, Suite 200, Washington, DC 20006, and tests performed at the Palisades Plant to on May 4, 1995, the NRC staff consulted Dan Chenok, Office of Management and show adequate containment with the Michigan State official, Dennis Budget, Office of Information and performance and will continue to be Hahn of the Michigan Department of Regulatory Affairs, 725 17th St., NW, required to conduct the Type B and C Public Health, Nuclear Facilities and Washington, DC 20503. local leak rate tests which historically Environmental Monitoring, regarding 30116 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices the environmental impact of the The Need for the Proposed Action their badge offsite instead of returning proposed action. The State official had Pursuant to 10 CFR 73.55, paragraph them when exiting the site. no comments. (a), the licensee shall establish and Environmental Impacts of the Proposed Finding of No Significant Impact maintain an onsite physical protection Action system and security organization. The Commission has completed its Based upon the environmental 10 CFR 73.55(d), ‘‘Access evaluation of the licensee’s application. assessment, the Commission concludes Requirements,’’ paragraph (1), specifies Under the proposed system, all that the proposed action will not have that ‘‘licensee shall control all points of a significant effect on the quality of the individuals authorized to gain personnel and vehicle access into a unescorted access will have the physical human environment. Accordingly, the protected area.’’ 10 CFR 73.55(d)(5) Commission has determined not to characteristics of their hand (hand specifies that ‘‘A numbered picture geometry) recorded with their badge prepare an environmental impact badge identification system shall be statement for the proposed action. number. Since the hand geometry is used for all individuals who are unique to each individual and its For further details with respect to the authorized access to protected areas application in the entry screening proposed action, see the licensee’s without escort.’’ 10 CFR 73.55(d)(5) also function would preclude unauthorized letters dated March 17 and April 26, states that an individual not employed use of a badge, the requested exemption 1995, which are available for public by the licensee (i.e., contractors) may be would allow employees and contractors inspection at the Commission’s Public authorized access to protected areas to keep their badges at the time of Document Room, The Gelman Building, without escort provided the individual exiting the protected area. The process 2120 L Street, NW., Washington, DC, ‘‘receives a picture badge upon entrance of verifying badge issuance, ensuring and at the local public document room into the protected area which must be badge retrieval, and maintaining badges located at the Van Wylen Library, Hope returned upon exit from the protected could be eliminated while the balance College, Holland, Michigan 49423. area . . .’’ of the access procedure would remain Dated at Rockville, Maryland, this 31st day Currently, employee and contractor intact. Firearm, explosive, and metal of May 1995. identification/access control badges are detection equipment and provisions for For the Nuclear Regulatory Commission. issued and retrieved on the occasion of conducting searches will remain as Janet L. Kennedy, each entry to and exit from the well. The security officer responsible for protected areas of the River Bend site. Project Manager, Project Directorate III–1, the last access control function Division of Reactor Projects—III/IV, Office of Station security personnel are required (controlling admission to the protected Nuclear Reactor Regulation. to maintain control of the badges while area) will also remain isolated within a [FR Doc. 95–13975 Filed 6–6–95; 8:45 am] the individuals are offsite. Security bullet-resistant structure in order to personnel retain each identification/ BILLING CODE 7590±01±M assure his or her ability to respond or access control badge when not in use by to summon assistance. the authorized individual, within Use of a hand geometry biometrics appropriately designed storage system exceeds the present verification [Docket No. 50±458] receptacles inside a bullet-resistant methodology’s capability to discern an enclosure. An individual who meets the Entergy Operations, Inc.; River Bend individual’s identity. Unlike the access authorization requirements is Station, Unit 1; Environmental photograph identification badge, hand issued the individual picture Assessment and Finding of No geometry is nontransferable. During the identification/access control card which Significant Impact initial access authorization or allows entry into preauthorized areas of registration process, hand The U.S. Nuclear Regulatory the station. While entering the plant in measurements are recorded and the Commission (the Commission) is the present configuration, an authorized template is stored for subsequent use in considering issuance of an exemption individual is ‘‘screened’’ by the required the identity verification process from certain requirements of its detection equipment. The individual required for entry into the protected regulations to Facility Operating License provides a personal identification area. Authorized individuals insert their No. NPF–47, issued to Entergy number (PIN) to the issuing guard and access authorization card into the card Operations, Inc. (the licensee), for is screened again by the issuing security reader and the biometrics system operation of the River Bend Station, officer using the picture identification records an image of the hand geometry. Unit 1 (RBS), located in West Feliciana on the access card. Having received the The unique features of the newly Parish, Louisiana. badge, the individual proceeds to the recorded image are then compared to access portal, inserts the access control the template previously stored in the Environmental Assessment card into the card reader, and passes database. Access is ultimately granted Identification of Proposed Action through the turnstile which is unlocked based on the degree to which the by the access card. Once inside the characteristics of the image match those The proposed action is in accordance station, the access card allows entry of the ‘‘signature’’ template. with the licensee’s application dated only to preauthorized areas and the Since both the badge and hand October 24, 1994, for exemption from individual’s PIN is no longer required. geometry would be necessary for access certain Requirements of 10 CFR 73.55, This present procedure is labor into the protected area, the proposed ‘‘Requirements for physical protection intensive since security personnel are system would provide for a positive of licensed activities in nuclear power required to verify badge issuance, verification process. Potential loss of a reactors against radiological sabotage.’’ ensure badge retrieval, and maintain the badge by an individual, as a result of The exemption would allow badge in orderly storage until the next taking the badge offsite, would not implementation of a hand geometry entry into the protected area. The enable an unauthorized entry into biometric system for site access control regulations permit employees to remove protected areas. such that picture badges and access their badge from the site, but an The access process will continue to be control cards for certain non-employees exemption from 10 CFR 73.55(d)(5) is under the observation of security can be taken offsite. required to permit contractors to take personnel. The system of identification/ Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30117 access control badges will continue to Findings of No Significant Impact plant reactors against radiological be used for all individuals who are Based on the environmental sabotage.’’ authorized access to protected areas assessment, the Commission concludes The Need for the Proposed Action without escorts. Badges will continue to that the proposed action will not have Pursuant to 10 CFR 73.55, paragraph be displayed by all individuals while a significant effect on the quality of the inside the protected area. Addition of a (a), the licensee shall establish and human environment. Accordingly, the maintain an onsite physical protection hand geometry biometrics system will Commission has determined not to provide a significant contribution to system and security organization. prepare an environmental impact ‘‘Access Requirements,’’ of 10 CFR effective implementation of the security statement for the proposed action. 73.55(d), paragraph (1), specifies that plan at each site. For further details with respect to this ‘‘licensee shall control all points of The change will not increase the proposed action, see the request for personnel and vehicle access into a probability or consequences of exemption dated October 24, 1994, protected area. .. .’’ It is specified in accidents, no changes are being made in which is available for public inspection 10 CFR 73.55(d)(5) that ‘‘A numbered the types of any effluents that may be at the Commission’s Public Document picture badge identification system shall released offsite, and there is no Room, 2120 L Street, NW., Washington, be used for all individuals who are significant increase in the allowable DC, and at the local public document authorized access to protected areas individual or cumulative occupational room located at the Government without escort.’’ It also states that an radiation exposure. Accordingly, the Documents Department, Louisiana State individual not employed by the licensee Commission concludes that there are no University, Baton Rouge, LA 70803. (i.e., contractors) may be authorized significant radiological environmental Dated at Rockville, Maryland this 30th day access to protected areas without escort impacts associated with the proposed of May 1995. provided the individual ‘‘receives a action. For the Nuclear Regulatory Commission. picture badge upon entrance into the With regard to potential David L. Wigginton, protected area which must be returned upon exit from the protected area. . . .’’ nonradiological impacts, the proposed Senior Project Manager, Project Directorate Currently, unescorted access into action does involve features located IV–1, Division of Reactor Projects III/IV, Office protected areas of STP is controlled entirely within the restricted area as of Nuclear Reactor Regulation. [FR Doc. 95–13979 Filed 6–6–95; 8:45 am] through the use of a photograph on a defined in 10 CFR Part 20. It does not combination badge and keycard BILLING CODE 7590±01±M affect nonradiological plant effluents (hereafter referred to as a badge). The and has no other environmental impact. security officers at each entrance station Accordingly, the Commission concludes [Docket Nos. 50±498 and 499] use the photograph on the badge to that there are no significant visually identify the individual nonradiological environmental impacts Houston Lighting & Power Company requesting access. The badges for both associated with the proposed action. City Public Service Board of San licensee employees and contractor Antonio Central Power and Light Alternative to the Proposed Action personnel, who have been granted Company City of Austin, Texas; South unescorted access, are issued upon Since the Commission has concluded Texas Project, Units 1 and 2 entrance at each entrance/exit location there is not measurable environmental Environmental Assessment and and are returned upon exit. The badges impact associated with the proposed Finding of No Significant Impact are stored and are retrievable at each action, any alternatives with equal or The U.S. Nuclear Regulatory entrance/exit location. In accordance greater environmental impact need not Commission (the Commission) is with 10 CFR 73.55(d)(5), contractor be evaluated. As an alternative to the considering issuance of an exemption individuals are not allowed to take proposed action, the staff considered from Facility Operating License Nos. badges offsite. In accordance with the denial of the proposed action. Denial of NPF–76 and NPF–80, issued to Houston plants’ physical security plans, neither the application would result in no Lighting & Power Company (HL&P) licensee employees nor contractors are change in current environmental acting on behalf of itself and for the City allowed to take badges offsite. impacts. The environmental impacts of Public Service Board of San Antonio The licensee proposes to implement the proposed action and the alternative (CPS), Central Power and Light an alternative unescorted access control action are similar. Company (CPL), and City of Austin, system which would eliminate the need to issue and retrieve badges at each Alternative Use of Resources Texas (COA) (the licensees), for operation of the South Texas Project, entrance/exit location and would allow This action does not involve the use Units 1 and 2, (STP) located in all individuals with unescorted access of any resources not previously Matagorda County, Texas. to keep their badges with them when considered in the Final Environmental departing the site. Environmental Assessment An exemption from 10 CFR Statements related to operation of River 73.55(d)(5) is required to permit Bend Station, Unit 1. Identification of the Proposed Action contractors to take their badges offsite Agencies and Persons Consulted The proposed action would allow instead of returning them when exiting implementation of a hand geometry the site. In accordance with its states policy, biometric system of site access control The Commission has completed its on May 16, 1995, the staff consulted such that photograph identification evaluation of the proposed action. with the Louisiana State official, Dr. badges can be taken offsite. Under the proposed system, each Stan Shaw, Assistant Administrator of The proposed action is in accordance individual who is authorized for the Louisiana Radiation Protection with the licensee’s application dated unescorted entry into protected areas Division, Department of Environmental March 27, 1995, for exemption from would have the physical characteristics Quality, regarding the environmental certain requirements of 10 CFR 73.55, of their hand (hand geometry) registered impact of the proposed action. The State ‘‘Requirements for physical protection with their badge number in the access official had no comments. of licensed activities in nuclear power control system. When an individual 30118 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices enters the badge into the card reader within the restricted area as defined in For the Nuclear Regulatory Commission. and places the hand on the measuring 10 CFR Part 20. It does not affect Thomas W. Alexion, surface, the system would record the nonradiological plant effluents and has Project Manager, Project Directorate IV–1, individual’s hand image. The unique no other environmental impact. Division of Reactor Projects III/IV, Office of characteristics of the extracted hand Accordingly, the Commission concludes Nuclear Reactor Regulation. image would be compared with the that there are no significant [FR Doc. 95–13978 Filed 6–6–95; 8:45 am] previously stored template to verify nonradiological environmental impacts BILLING CODE 7590±01±M authorization for entry. Individuals, associated with the proposed action. including licensee employees and contractors, would be allowed to keep Alternatives to the Proposed Action [Docket No. 50±443] their badge with them when they depart Since the Commission has concluded North Atlantic Energy Service the site. Corporation, Seabrook Station, Unit Based on a Sandia report entitled ‘‘A there is no measurable environmental No. 1; Environmental Assessment and Performance Evaluation of Biometric impact associated with the proposed Finding of No Significant Impact Identification Devices’’ (SAND91—0276 action, any alternatives with equal or UC—906 Unlimited Release, Printed greater environmental impact need not The U.S. Nuclear Regulatory June 1991), and on its experience with be evaluated. The principal alternative Commission (the Commission) is the current photo-identification system, to the action would be to deny the considering issuance of an exemption the licensee concludes that the request. Such action would not change from Facility Operating License No. proposed hand geometry system will any current environmental impacts. The NPF–86, issued to North Atlantic provide the same high assurance environmental impacts of the proposed Energy Service Corporation (the licensee objective regarding onsite physical action and the alternative action are or North Atlantic), for operation of the protection that is achieved by the similar. Seabrook Station, Unit No. 1 (Seabrook) current system. Since both the badge located in Rockingham County, New and hand geometry would be necessary Alternative Use of Resources Hampshire. for access into the protected area, the proposed system would provide for a This action does not involve the use Environmental Assessment of any resources not previously positive verification process. Potential Identification of the Proposed Action loss of a badge by an individual, as a considered in the ‘‘Final Environmental result of taking the badge offsite, would Statement related to the operation of This Environmental Assessment has not enable an unauthorized entry into South Texas Project, Units 1 and 2,’’ been prepared to address potential protected areas. The licensee will dated August 1986. environmental issues related to North implement a process for testing the Atlantic’s request for exemption dated Agencies and Persons Consulted proposed system to ensure a continued October 17, 1994, as supplemented by letters dated February 13, 1995, April overall level of performance equivalent In accordance with its stated policy, 26, 1995, and May 12, 1995. The to that specified in the regulation. The on May 12, 1995, the staff consulted proposed action would exempt North Physical Security Plans for both sites with the Texas State official, Arthur C. will be revised to include Atlantic from certain requirements of 10 Tate of the Bureau of Radiation Control, CFR 73.55. The proposed action would implementation and testing of the hand Texas Department of Health, regarding geometry access control system and to allow North Atlantic to eliminate the environmental impact of the allow licensee employees and issuing and retrieving photograph proposed action. The State official had contractors to take their badges offsite. identification badges at the entrance and The access process will continue to be no comments. exit location to the Seabrook protected under the observation of security Findings of No Significant Impact area upon implementation of a personnel. A numbered picture badge biometric (hand geometry) system of site identification system will continue to be Based on the environmental access control. North Atlantic would be used for all individuals who are assessment, the Commission concludes authorized to permit all individuals authorized access to protected areas that the proposed action will not have with unescorted access, including North without escorts. Badges will continue to a significant impact on the quality of the Atlantic employees, contractor be displayed by all individuals while human environment. Accordingly, the personnel, NRC employees, and others inside the protected area. Commission has determined not to to retain their badges when leaving the Seabrook protected area. Environmental Impacts of the Proposed prepare an environmental impact Action statement for the proposed action. The Need for the Proposed Action The change will not increase the For further details with respect to the The requirements for the probability or consequences of proposed action, see the licensee’s letter establishment and maintenance of a accidents, no changes are being made in dated March 27, 1995, which is physical protection system against theft the types of any effluents that may be available for public inspection at the of special nuclear material and against released offsite, and there is no Commission’s Public Document Room, radiological sabotage at certain sites significant increase in the allowable the Gelman Building, 2120 L Street, where special nuclear material is used individual or cumulative occupational NW., Washington, DC, and at the local are prescribed in 10 CFR Part 73. radiation exposure. Accordingly, the public document room located at the Facilities licensed under 10 CFR Part 50 Commission concludes that there are no Wharton County Junior College, J.M. are included in the scope of 10 CFR Part significant radiological environmental Hodges Learning Center, 911 Boling 73. Paragraph 73.55(a) specifies the impacts associated with the proposed Highway, Wharton, TX 77488. general performance objectives and action. requirements of an onsite physical With regard to potential Dated at Rockville, Maryland, this 31st day protection system and security nonradiological impacts, the proposed of May 1995. organization, and paragraphs 73.55(b) action involves features located entirely through 73.55(h) specify minimum Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30119 specific requirements for the onsite Under the proposed system, each operated or change the facility itself. physical protection system and security individual who is authorized for Accordingly, the Commission concludes organization. Access requirements are unescorted entry into the protected area that the proposed action would result in specified in 73.55(d). Paragraph would have the physical characteristics no radiological or nonradiological 73.55(d)(1) requires that licensees of their hand (hand geometry) registered environmental impact. control all points of personnel and with their badge number and keycard in vehicle access into a protected area, and the access control system. When an Alternatives to the Proposed Action 73.55(d)(5) requires a numbered picture individual inserts the keycard into the Since the Commission has concluded badge identification system to be used card reader and places the hand on the for all individuals who are authorized measuring surface, the system would there is no environmental impact access to protected areas without escort. record the individual’s hand image. The associated with the proposed action, Paragraph 73.55(d)(5) also states that an unique characteristics of the extracted any alternatives with equal or greater individual not employed by the licensee hand image would be compared with environmental impact need not be may be authorized access to protected the previously stored template evaluated. The principal alternative to areas without escort provided the associated with that badge and keycard the action would be to deny the request. individual receives a picture badge to verify authorization for entry. All Such action would not change any upon entrance into the protected area individuals authorized for unescorted current environmental impacts. The which must be returned upon exit from access would be allowed to retain their environmental impacts of the proposed the protected area. badge and keycard when leaving the action and the alternative action are Currently, unescorted access into protected area. similar. protected areas of Seabrook is controlled Based on Sandia Laboratory report, through the use of a numbered picture SAND91—0276 UC—906, A Alternative Use of Resources badge and an attached but separate Performance Evaluation of Biometric This action does not involve the use keycard (containing encoded Identification Devices, (Unlimited information to relate the keycard to the Release, Printed June 1991), and on of any resources not previously badged individual) which is used to North Atlantic’s experience with the considered in the Final Environmental actuate the entrance turnstile for access current photo-identification system, Statement for the Seabrook Station, Unit into the protected area and certain other North Atlantic demonstrated that the No. 1. specific areas authorized within the proposed hand geometry system would Agencies and Persons Consulted protected area. The badges and keycards provide enhanced site access control. for all individuals who have been Since the badge, keycard, and hand In accordance with its stated policy, granted unescorted access, including geometry would be necessary for access on May 17, 1995 the NRC staff North Atlantic employees, contractor into the protected area, the proposed consulted with the Massachusetts State personnel, NRC employees, and others, system would provide for a positive official, Mr. James Muckerheid of the are stored by security personnel at the verification process. Loss of either a Massachusetts Emergency Management entrance to the protected area whenever picture badge, keycard or both badge Agency regarding the environmental they are not being used by the and keycard outside the protected area impact of the proposed action. On May authorized individuals. Security would not enable an unauthorized entry 18, 1995 the NRC staff consulted with personnel stationed at the entrance to into the protected area. North Atlantic the New Hampshire State official, Mr. the protected area use the photograph will implement a process for testing the George Iverson of the New Hampshire on the badge to visually verify the proposed system to ensure continued Emergency Management Agency. The identity of an individual requesting overall level of performance equivalent access. After verification, the badge and to that specified in the regulation. The State officials had no comments. keycard are issued to the individual to Physical Security Plan and Safeguards Finding of No Significant Impact allow entrance to the protected area. Contingency Plan for Seabrook will be The badge and keycard are retrieved revised to include implementation and Based on the environmental when the individual is exiting the testing of the hand geometry access assessment, the Commission concludes protected area. In accordance with the control system and to allow badges and that the proposed action will not have Seabrook Physical Security Plan and keycards to be taken from the protected a significant effect on the quality of the Safeguards Contingency Plan, no area. human environment. Accordingly, the individual is allowed to retain a badge The access will continue to be under Commission has determined not to and keycard when leaving the protected the observation of security personnel. A prepare an environmental impact area. numbered picture badge identification statement for the proposed action. North Atlantic proposes to implement system will continue to be used for all an alternative unescorted access control individuals who are authorized access For further details with respect to the system which would eliminate the need to protected areas without escorts, and proposed action, see North Atlantic’s to issue and retrieve badges and picture badges will continue to be letters dated October 17, 1994, February keycards at the protected area entrance/ displayed by all individuals while 13, 1995, April 26, 1995, and May 12, exit location and, instead, would allow inside the protected area. 1995, which are available for public all individuals with unescorted access inspection at the Commission’s Public Environmental Impacts of the Proposed to retain their badges and keycards Document Room, the Gelman Building, Action when leaving the protected area. 2120 L Street, NW., Washington, DC, An exemption from 10 CFR The Commission has completed its and at the local public document room 73.55(d)(5) is required to permit evaluation of the proposed exemption located at the Exeter Public Library, individuals who are not North Atlantic and concludes that there will be no Founders Park, Exeter, NH 03833. employees to take their numbered changes to Seabrook or the environment Dated at Rockville, Maryland, this 31st day picture badges from the protected area. as a result of this action. The proposed The Commission has completed its exemption does not in any way affect of May 1995. evaluation of the proposed action. the manner by which the facility is 30120 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices For the Nuclear Regulatory Commission. any accident. No changes are being Statement for Diablo Canyon Nuclear Phillip F. McKee, made in the types or amounts of any Power Plant, Unit Nos. 1 and 2. radiological effluents that may be Director, Project Directorate I–3, Division of Agencies and Persons Consulted Reactor Projects—I/II, Office of Nuclear released offsite. There is no significant Reactor Regulation. increase in the allowable individual or In accordance with its stated policy, [FR Doc. 95–13977 Filed 6–6–95; 8:45 am] cumulative occupational radiation on May 22, 1995, the staff consulted BILLING CODE 7590±01±M exposure. with the California State official, Mr. The environmental impacts of Steve Hsu of the Department of Health transportation resulting from the use of Services, regarding the environmental [Docket Nos. 50±275 and 50±323]: higher enrichment fuel and extended impact of the proposed action. The State irradiation (an enveloping case for the official had no comments. Pacific Gas and Electric Company Diablo Canyon Power Plant since Diablo Canyon Nuclear Power Plant, burnup remains unchanged) were Finding of No Significant Impact Unit Nos. 1 and 2; Environmental published and discussed in the staff Based upon the environmental Assessment and Finding of No assessment entitled, ‘‘NRC Assessment assessment, the Commission concludes Significant Impact of the Environmental Effects of that the proposed action will not have The U.S. Nuclear Regulatory Transportation Resulting from Extended a significant effect on the quality of the Commission (the Commission) is Fuel Enrichment and Irradiation,’’ dated human environment. Accordingly, the considering issuance of amendments to July 7, 1988, and published in the Commission has determined not to Facility Operating License Nos. DPR–80 Federal Register (53 FR 30355) on prepare an environmental impact and DPR–82, issued to Pacific Gas and August 11, 1988, as corrected on August statement for the proposed action. Electric Company (the licensee), for 24, 1988 (53 FR 32322) in connection For further details with respect to the operation of Diablo Canyon Nuclear with Shearon Harris Nuclear Power proposed action, see the licensee’s letter Power Plant, Unit Nos. 1 and 2, located Plant Unit 1: Environmental Assessment dated February 6, 1995, as in San Luis Obispo County, California. and Finding of No Significant Impact. supplemented by letters dated March As indicated therein, the environmental 23, and May 22, 1995, which are Environmental Assessment cost contribution of the proposed available for public inspection at the Identification of the Proposed Action increase in the fuel enrichment and Commission’s Public Document Room, irradiation limits are either unchanged The Gelman Building, 2120 L Street, The proposed action would allow the or may, in fact, be reduced from those NW, Washington, DC, and at the local storage of fuel in new and spent fuel summarized in Table S–4 as set forth in public document room located at the racks with enrichments up to and 10 CFR 51.52(c). Accordingly, the California Polytechnic State University, including 5.0 weight percent U–235, Commission concludes that there are no Robert E. Kennedy Library, Government would clarify that substitution of fuel significant radiological environment Documents and Maps Department, San rods with filler rods is acceptable for impacts associated with the proposed Louis Obispo, California 93407. fuel designs that have been analyzed amendment. with applicable NRC-approved codes Dated at Rockville, Maryland, this 1st day With regard to potential of June 1995. and methods, and would allow the use nonradiological impacts of reactor For the Nuclear Regulatory Commission. of ZIRLO fuel cladding in the future in operation with higher enrichment, the addition to Zircaloy–4. The proposed proposed action involves features William H. Bateman, action is in accordance with the located entirely within the restricted Director, Project Directorate IV–2, Division licensee’s application for amendment area as defined in 10 CFR Part 20. It of Reactor Projects III/IV, Office of Nuclear Reactor Regulation. dated February 6, 1995, as does not affect nonradiological plant supplemented by letters dated March effluents and has no other [FR Doc. 95–13976 Filed 6–6–95; 8:45 am] 23, and May 22, 1995. environmental impact. Accordingly, the BILLING CODE 7590±01±M The Need for the Proposed Action Commission concludes that there are no significant nonradiological [Docket Nos. 50±277 and 50±278] The proposed action is needed so that environmental impacts associated with the licensee can use higher fuel the proposed action. PECO Energy Company; Notice of enrichment to provide the flexibility of Consideration of Issuance of Alternatives to the Proposed Action extending the fuel irradiation and to Amendment to Facility Operating permit future operation with longer fuel Since the Commission has concluded License and Opportunity for a Hearing cycles. there is no measurable environmental impact associated with the proposed The U.S. Nuclear Regulatory Environmental Impacts of the Proposed Commission (the Commission) is Action action, any alternatives with equal or greater environmental impact need not considering issuance of an amendment The Commission has completed its be evaluated. As an alternative to the to Facility Operating License Nos. DPR– evaluation of the proposed revisions to proposed action, the staff considered 44 and DPR–56 issued to PECO Energy the technical specifications. The denial of the proposed action. Denial of Company (the licensee) for operation of proposed revisions would permit the application would result in no the Peach Bottom Atomic Power storage of fuel enriched to a nominal 5.0 change in current environmental Station, Units 2 and 3, located at York weight percent Uranium 235. The safety impacts. The environmental impacts of County, Pennsylvania. considerations associated with storing the proposed action and the alternative The proposed amendment would new and spent fuel of a higher action are similar. revise the technical specification (TS) enrichment have been evaluated by the limiting condition for operation (LCO) NRC staff. The staff has concluded that Alternative Use of Resources for the Peach Bottom emergency diesel such changes would not adversely affect This action does not involve the use generators (EDGs). The LCOs will be plant safety. The proposed changes have of any resources not previously revised to allow a single EDG to be out no adverse effect on the probability of considered in the Final Environmental of service for a period of 30 days Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30121 provided a recently installed tie-line following factors: (1) The nature of the Docketing and Services Branch, or may from the Conowingo Hydroelectric petitioner’s right under the Act to be be delivered to the Commission’s Public Station is operable. The allowed out of made a party to the proceeding; (2) the Document Room, the Gelman Building, service time (AOT) for a single EDG will nature and extent of the petitioner’s 2120 L Street, NW., Washington, DC, by revert to the existing 7 day AOT if the property, financial, or other interest in the above date. Where petitions are filed Conowingo line is inoperable. The LCO the proceeding; and (3) the possible during the last 10 days of the notice will also be modified to address effect of any order which may be period, it is requested that the petitioner instances where either the Conowingo entered in the proceeding on the promptly so inform the Commission by line or an EDG become inoperable if the petitioner’s interest. The petition should a toll-free telephone call to Western other is already inoperable. The also identify the specific aspect(s) of the Union at 1–(800) 248–5100 (in Missouri proposed amendment will add a TS subject matter of the proceeding as to 1–(800) 342–6700). The Western Union reporting requirement if the Conowingo which petitioner wishes to intervene. operator should be given Datagram line is inoperable for 15 days. The Any person who has filed a petition for Identification Number N1023 and the proposed amendment will also add a leave to intervene or who has been following message addressed to John F. surveillance requirement to verify the admitted as a party may amend the Stolz: petitioner’s name and telephone operability of the Conowingo line once petition without requesting leave of the number; date petition was mailed; plant per month. Board up to 15 days prior to the first name; and publication date and page Before issuance of the proposed prehearing conference schedule in the number of this Federal Register notice. license amendment, the Commission proceeding, but such an amended A copy of the petition should also be will have made findings required by the petition must satisfy the specificity Atomic Energy Act of 1954, as amended requirements described above. sent to the Office of the General (the Act) and the Commission’s Not later than 15 days prior to the first Counsel, U.S. Nuclear Regulatory regulations. prehearing conference scheduled in the Commission, Washington, DC 20555, By July 7, 1995, the licensee may file proceeding, a petitioner shall file a and to J. W. Durham, Sr., Esquire, Sr. a request for a hearing with respect to supplement to the petition to intervene V.P. and General Counsel, PECO Energy issuance of the amendment to the which must include a list of the Company, 2301 Market Street, subject facility operating license and contentions which are sought to be Philadelphia, Pennsylvania 19101, any person whose interest may be litigated in the matter. Each contention attorney for the licensee. affected by this proceeding and who must consist of a specific statement of Nontimely filings of petitions for wishes to participate as a party in the the issue of law or fact to be raised or leave to intervene, amended petitions, proceeding must file a written request controverted. In addition, the petitioner supplemental petitions and/or requests for a hearing and a petition for leave to shall provide a brief explanation of the for hearing will not be entertained intervene. Requests for a hearing and a bases of the contention and a concise absent a determination by the petition for leave to intervene shall be statement of the alleged facts or expert Commission, the presiding officer or the filed in accordance with the opinion which support the contention presiding Atomic Safety and Licensing Commission’s ‘‘Rules of Practice for and on which the petitioner intends to Board that the petition and/or request Domestic Licensing Proceedings’’ in 10 reply in proving the contention at the should be granted based upon a CFR part 2. Interested persons should hearing. The petitioner must also balancing of the factors specified in 10 consult a current copy of 10 CFR 2.714 provide references to those specific CFR 2.714(a)(1) (i)–(v) and 2.714(d). which is available at the Commission’s sources and documents of which the Public Document Room, the Gelman petitioner is aware and on which the If a request for a hearing is received, Building, 2120 L Street, NW., petitioner intends to rely to establish the Commission’s staff may issue the Washington, DC, and at the local public those facts or expert opinion. Petitioner amendment after it completes its document room located at the must provide sufficient information to technical review and prior to the Government Publications Section, State show that a genuine dispute exists with completion of any required hearing if it Library of Pennsylvania, (Regional the applicant on a material issue of law publishes a further notice for public Depository) Education Building, Walnut or fact. Contentions shall be limited to comment of its proposed finding of no Street and Commonwealth Avenue, Box matters within the scope of the significant hazards consideration in 1601, Harrisburg, Pennsylvania 17105. If amendment under consideration. The accordance with 10 CFR 50.91 and a request for a hearing or petition for contention must be one which, if 50.92. leave to intervene is filed by the above proven, would entitle the petitioner to For further details with respect to this date, the Commission or an Atomic relief. A petitioner who fails to file such action, see the application for Safety and Licensing Board, designated a supplement which satisfies these amendment dated April 7, 1994, as by the Commission or by the Chairman requirements with respect to at least one supplemented by letters dated June 2, of the Atomic Safety and Licensing contention will not be permitted to and September 6, 1994, which are Board Panel, will rule on the request participate as a party. available for public inspection at the and/or petition; and the Secretary or the Those permitted to intervene become Commission’s Public Document Room, designated Atomic Safety and Licensing parties to the proceeding, subject to any the Gelman Building, 2120 L Street, Board will issue a notice of hearing or limitations in the order granting leave to NW., Washington, DC, and at the local an appropriate order. intervene, and have the opportunity to public document room located at the As required by 10 CFR 2.714, a participate fully in the conduct of the Government Publications Section, State petition for leave to intervene shall set hearing, including the opportunity to Library of Pennsylvania, (REGIONAL forth with particularly the interest of the present evidence and cross-examine DEPOSITORY) Education Building, petitioner in the proceeding, and how witnesses. that interest may be affected by the A request for a hearing or a petition Walnut Street and the Commonwealth results of the proceeding. The petition for leave to intervene must be filed with Avenue, Box 1601, Harrisburg, should specifically explain the reasons the Secretary of the Commission, U.S. Pennsylvania 17105. why intervention should be permitted Nuclear Regulatory Commission, Dated at Rockville, Maryland, this 31st day with particular reference to the Washington, DC 20555, Attention: of May, 1995. 30122 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices For the Nuclear Regulatory Commission. Specifically, the Exchange proposes to quarter will result in better, more liquid John F. Stolz, amend Rule 958 to: (1) Require Traders markets because Traders will be Director, Project Directorate I–2, Division of to execute at least 25% of his or her available in trading crowds to contribute Reactor Projects—I/II, Office of Nuclear individual options transactions and to the maintenance of fair and orderly Reactor Regulation. total contract volume in each calendar markets, and will encourage Traders to [FR Doc. 95–13974 Filed 6–6–95; 8:45 am] quarter in person and not through the make more competitive bids and offers 8 BILLING CODE 7590±01±M use of orders; (2) require Traders to and trade for their own account when have at least 75% of their trading there exists a lack of price continuity, a activity (measured in terms of contract temporary disparity between the supply SECURITIES AND EXCHANGE volume) in the classes of options to of and demand for options contracts, or COMMISSION which they are assigned, as opposed to a temporary distortion of the price the 50% currently required;9 and (3) relationships between options. [Release No. 34±35786; File No. SR±Amex± extend market maker capital and margin With regard to market maker 94±51] treatment for a Trader’s opening off- treatment for off-floor options Self-Regulatory Organizations; Order floor orders provided that at least (i) transactions, Amex Rule 958(g) Approving a Proposed Rule Change 80% of their total transactions and currently provides that only option and Notice of Filing and Order contract volume on the Exchange in transactions initiated on the Amex’s Granting Accelerated Approval of each calendar quarter are executed in floor count as market maker Amendment Nos. 1 and 2 to the person and not through the use of orders transactions. Thus, only on-floor market and (ii) the Trader satisfies its maker transactions qualify for favorable Proposed Rule Change by the 10 American Stock Exchange, Inc. obligations pursuant to Rule 958. In capital and margin treatment under the Relating to the In Person Trading addition, the proposal requires Traders Amex’s rules, even if such orders are to satisfy the market making obligations Volume Requirement for Registered entered to adjust or hedge the risk of set forth in Amex Rule 958 11 for all off- Option Traders positions of the Trader that result from floor orders for which a Trader receives the Trader’s on-floor market making May 31, 1995. market maker treatment and, in general, activity.12 On November 18, 1994, the American that those orders be effected only for The Amex states that because a Trader Stock Exchange, Inc. (‘‘Amex’’ or purposes of hedging, reducing the risk currently cannot effectively adjust his or ‘‘Exchange’’), pursuant to Section of, rebalancing, or liquidating open her positions or engage in hedging or 19(b)(1) of the Securities Exchange Act positions of the Trader. other risk limiting opening transactions of 1934 (‘‘Act’’) 1 and Rule 19b–4 Currently, under Amex Rule 958 there from off the Exchange floor without thereunder,2 filed with the Securities is no in person trading volume or incurring a significant economic and Exchange Commission transaction requirement for Traders. The penalty, Amex Traders must either be (‘‘Commission’’) a proposal regarding Exchange believes, however, that physically present on the floor at all the in person 3 trading volume establishing an in person requirement times while the market is open, or face requirement for Registered Options for Traders of at least 25% of a Trader’s significant risks of adverse market Traders (‘‘Traders’’).4 Notice of the individual transactions and total movements during those times when proposal appeared in the Federal contract volume during each calendar they must necessarily be absent from the Register on December 12, 1994.5 No trading floor. The Amex argues that by Traders who elect market maker treatment for off- comment letters were received on the floor opening transactions but fail to satisfy the imposing costs on certain hedging or proposed rule change. The Exchange requirements of Rule 958 will be referred to the risk-adjusting transactions of Traders, filed Amendment No. 1 to the proposal Exchange’s Committee on Specialist and Registered the Amex’s current rules may prevent on January 9, 1995,6 and Amendment Trader Performance rather than the Exchange’s Traders from effectively discharging 7 Minor Floor Violation Disciplinary Committee as No. 2 on April 6, 1995. This order provided in Amendment No. 1. See Letter from their market making obligations and approves the proposal, as amended. Claire McGrath, Managing Director and Special expose them to unacceptable levels of Counsel, Derivative Securities, Amex, to Michael risk. The Amex believes that the 1 15 U.S.C. 78s(b)(1) (1988). Walinskas, Branch Chief, OMS, Division, Commission, dated April 5, 1995 (‘‘Amendment No. amended proposal addresses these 2 17 CFR 240.19b–4 (1994). 2’’). concerns by offering Traders the 3 ‘‘In person’’ means that options transactions are 8 The proposal also gives the Exchange the personally executed by a Trader on the Amex floor opportunity to obtain market maker authority to increase the 25% in person treatment for up to 20% of their off-floor and not through the use of orders given to a floor requirement if the Exchange, in its discretion, broker or left on a specialist’s book. deems such increase to be necessary. The Exchange opening transactions. 4 Traders are considered specialists for purposes would not have the authority to lower the in person Traders who elect market maker of the Act. See Amex Rule 958, Commentary .01. requirement below 25% without the prior approval treatment for off-floor opening 5 See Securities Exchange Act Release No. 35050 of the Commission pursuant to a rule filing under transactions but fail to satisfy the (December 5, 1994), 59 FR 64002. Section 19b of the Act. 6 As discussed herein, in Amendment No. 1 the 9 See Amendment No. 2, supra note 7. proposal’s requirements, including the Exchange clarifies the obligation of Traders 10 See Amendment No. 1, supra note 6. Currently, 80% in person requirement, will be receiving market maker treatment for off-floor Rule 958, Commentary .03 provides, among other referred to the Amex’s Committee on transactions and proposes disciplinary measures for things, that except for unusual circumstances, at Specialist and Registered Trader Traders improperly accepting market maker least 50% of a Trader’s trading activity in any treatment for such transactions. See Letter from calendar quarter (in terms of contract volume) must Performance and subject to the Claire McGrath, Managing Director and Special ordinarily be in classes of options to which the disciplinary measures provided in Counsel, Derivative Securities, Amex, to Michael Trader is assigned. In Amendment No. 2, the Article V of the Exchange’s Walinskas, Branch Chief, Office of Market Exchange proposes to amend this requirement so Constitution.13 Under Article V of the Supervision (‘‘OMS’’), Division of Market that at least 75% of total activity (in terms of Regulation (‘‘Division’’), Commission, dated contract volume) must be in assigned classes. See Exchange’s Constitution, the Exchange January 9, 1995 (‘‘Amendment No. 1’’). Amendment No. 2, supra note 7. 7 In Amendment No. 2, the Exchange proposes to 11 These obligations include, but are not limited 12 Questions of margin and capital treatment do amend Amex Rule 958, Commentary .01 and .03, to, requiring that such transactions contribute to the not arise in connection with closing transactions to provide that Traders must have at least 75% of maintenance of fair and orderly markets, and initiated from off the floor, because they only their trading activity in classes in which they are requiring market makers to bid and offer within reduce or eliminate existing positions. assigned. Additionally, the Exchange proposes that prescribed parameters. 13 See Amendment No. 2, supra note 7. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30123 may impose appropriate discipline for believes that the proposed 25% In summary, the Commission believes violations of the Act and the Exchange’s minimum in person trading that the introduction of an in person rules, including expulsion, suspension, requirement, the 75% minimum trading requirement, an increase in the limitation of activities, fines, censure, or assigned class requirement, and the required percentage of trades in any other suitable sanction.14 80% in person requirement for market assigned classes, and the availability of The Amex believes that the amended maker treatment for off-floor trades, market maker treatment for a limited proposal presents a more appropriate taken together, will help to ensure that number of off-floor transactions, as and realistic treatment of Trade Traders’ transactions continue to described above, should help to ensure transactions initiated from both off the contribute to the maintenance of fair the stability and orderliness of the trading floor and in person than what is and orderly markets while, at the same Amex’s markets. provided for under existing Exchange time, enabling Traders to better manage The Commission expects the Amex to Rule 958. The Amex believes that the risk of their market making closely monitor those Traders electing requiring Traders to execute at least activities. to receive market maker treatment for 25% of their transactions and total As the Amex has noted, under the off-floor orders as provided under the contract volume in each calendar current requirements, Traders who proposal to ensure that they are meeting quarter in person and, further, adjust existing positions for hedging the in person trading requirements in extending favorable margin and capital purposes while not physically present addition to their other market making treatment for off-floor transactions only on the Exchange floor cannot receive obligations required under Rule 958, as to those Traders who satisfy the 80% in market maker margin treatment for such amended. The Amex has represented person transaction and trading volume orders under any circumstances and that market makers who choose to requirement, should have the effect of must decide whether to close out their receive favorable margin and capital increasing the extent to which Trader positions or place their orders in a treatment under the proposal but fail to transactions contribute to liquidity and customer margin account requiring 50% satisfy the proposal’s requirements will to the maintenance of fair and orderly margin. While this may not be an be referred to the Exchange’s Committee markets on the Amex by providing for unreasonable result in many cases, the on Specialist and Registered Trader a greater degree of in person trading by Commission believes that the Amex has Performance and subject to the sections Traders and by enabling Traders to set forth a reasonable proposal that available under Article V of the better manage the risk of their market permits market maker treatment for Exchange’s Constitution.18 The making activities. Thus, the Amex certain off-floor orders under very Commission expects the Exchange to believes that the proposal is consistent limited circumstances that ensure that impose strict sanctions for violations of with and in furtherance of the objectives such orders must contribute to the the rule, particularly in cases of of Section 6(b)(5) and Section 11(a) of maintenance of fair and orderly markets egregious or repeated failures to comply the Act in that it will promote the and that require Traders to comply with with the rule’s requiremets.19 maintenance of fair and orderly markets a heightened 80% in person trading Finally, the Commission notes that on the Amex and will contribute to the requirement. the staff of the Board of Governors of the protection of investors and the public Moreover, by requiring that a Federal Reserve System (‘‘Board’’) has interest. previously issued a letter raising no The Commission finds that the percentage of Traders’ transactions be effected in person and by strengthening objection to the Commission’s approval proposal rule change is consistent with of a substantively similar proposal by the requirements of the Act and the the requirement that a substantial percentage of Traders’ transactions be the CBOE based on the Commission’s rules and regulations thereunder belief that the off-floor transactions of applicable to a national securities effected in their appointed classes, the proposal will improve Amex market market makers for which they can exchange, and, in particular, with the receive market maker treatment will be requirements of Section 6(b)(5) in that maker capabilities. The Commission believes these requirements will help to designed to contribute to the the proposal is designed to promote just maintenance of a fair and orderly and equitable principles of trade and to ensure that Traders will be physically present in their appointed classes to market and would be consistent with protect investors and the public the obligations of a specialist under 15 respond to public orders and to improve interest. In addition, the Commission Section 11 of the Act.20 finds that the proposal is consistent the price and size of the markets made on the Amex floor. In addition, the The Commission finds good cause for with the requirement under Section approving Amendment Nos. 1 and 2 to 11(b) of the Act and the rules proposal will have the effect of reducing the extent to which Amex Traders can the proposed rule change prior to the thereunder that require market maker thirtieth day after the date of transactions to be consistent with the effectively function as privileged investors by entering the Amex floor publication of notice of filing thereof in maintenance of fair and orderly the Federal Register. Specifically, the 16 only long enough to drop off orders with markets. Commission notes that Amendment The Commission believes that the a floor broker, without ever actually proposal is a reasonable effort by the making competitive quotations or otherwise affirmatively functioning as 18 See Amendment No. 2, supra note 7. Amex to accommodate the needs of 19 The Amex plans to issue a circular to its Traders to effect off-floor opening market makers. Thus, the Commission membership describing the rule change and transactions while reinforcing the believes the Amex proposal will serve to emphasizing the importance of monitoring off-floor requirement under Amex Rule 958 that maintain fair and orderly markets and trading activity. Telephone conversation between Claire McGrath, Managing Director and Special Traders’ transactions constitute a course generally promote the protection of 17 Counsel, Derivative Securities, Amex, and Brad of dealings reasonably calculated to investors and the public interest. Ritter, Senior Counsel, OMS, Division, Commission, contribute to the maintenance of a fair on January 10, 1995. and orderly market. The Commission 17 See Securities Exchange Act Release No. 21008 20 See Securities Exchange Act Release No. 34104 (June 1, 1984), 49 FR 23721 (June 7, 1984), (order (May 25, 1994), 59 FR 28438 (June 1, 1994), note approving proposed rule change by the Chicago 13 (citing letter from Scott Holz, Senior Attorney, 14 Id. Board Options Exchange (‘‘CBOE’’) establishing Board, to Howard Kramer, Associate Director, 15 15 U.S.C. 78f(b)(5)(1988). minimum in person and assigned class trading Division, Commission, dated March 9, 1994) 16 15 U.S.C. 78k (1982) and 17 CFR 240.11b–1. requirements for market makers). (‘‘Exchange Act Release No. 34104’’). 30124 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices Nos. 1 and 2 are more restrictive than [Release No. 34±35784; File No. SR±Amex± qualifying examination prior to the original proposal, which was 95±18] undertaking active duties on the Floor, published for the full 21-day comment and the Amex administers six such period without any comments being Self-Regulatory Organizations; Notice examinations.1 The contents of these received by the Commission.21 of Filing and Order Granting examinations and related materials were Additionally, the Commission notes that Accelerated Approval of Proposed approved by the Commission, pursuant Amendment Nos. 1 and 2 conform the Rule Change by the American Stock to Rule 19b–4 under the Act.2 In Amex proposal, in most respects, to the Exchange, Inc. Relating to the Use of addition, some members choose to take CBOE proposal previously approved by the Series 7A and 7B Examination the Series 7 examination (administered the Commission.22 Accordingly, the Modules by the National Association of Commission believes it is consistent May 31, 1995. Securities Dealers, Inc.), an industry- with Sections 6(b)(5) and 19(b)(2) of the Pursuant to Section 19(b)(1) of the wide qualification examination for Act to approve Amendment Nos. 1 and Securities Exchange Act of 1934 persons seeking registration as general 2 to the proposed rule change on an (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is securities representatives. A new more specialized examination, accelerated basis. hereby given that on May 22, 1995, the the Series 7A (administered by the American Stock Exchange, Inc. Solicitation of Comments NYSE), is designed only to qualify an (‘‘Amex’’ or ‘‘Exchange’’) filed with the exchange Floor member to accept orders Interested persons are invited to Securities and Exchange Commission from professional customers for submit written data, views and (‘‘Commission’’) the proposed rule execution on an exchange trading floor.3 arguments concerning Amendment Nos. change as described in Items I, II, and The Exchange is now proposing to 1 and 2 to the proposed rule change. III below, which Items have been permit members who pass the Series 7A Persons making written submissions prepared by the self-regulatory examination to accept orders from should file six copies thereof with the organization. The Commission is professional customers for execution on Secretary, Securities and Exchange publishing this notice to solicit Commission, 450 Fifth Street, NW., the Amex trading Floor.4 Those comments on the proposed rule change members who anticipate receiving Washington, DC 20549. Copies of the from interested persons. submission, all subsequent orders in listed options from such amendments, all written statements I. Self-Regulatory Organization’s customers will also be required to pass with respect to the proposed rule Statement of the Terms of Substance of the Listed Put and Call Options change that are filed with the the Proposed Rule Change Questionnaire for Registered Personnel, Commission, and all written The Amex is seeking approval to which is administered by the Amex. The use of this examination was communications relating to the utilize the Series 7A examination previously approved by the proposed rule change between the administered by the New York Stock Commission.5 Clerks of the Floor Commission and any person, other than Exchange, Inc. (‘‘NYSE’’) for members members would be required to pass the those that may be withheld from the seeking to conduct a professional new Series 7B examination, which is public in accordance with the customer business from the Amex Floor. administered by the NYSE. provisions of 5 U.S.C. 552, will be The Amex is also seeking approval to available for inspection and copying in It should be noted that the utilize the Series 7B examination for Commission has approved the content the Commission’s Public Reference clerks of such members. Section, 450 Fifth Street, NW., and use of both the Series 7A and 7B The text of the proposed rule change examinations.6 Washington, DC. Copies of such filing is available at the Amex and the will also be available for inspection and Commission. 1 copying at the principal office of the The following examinations are administered by II. Self-Regulatory Organization’s the Amex: the Qualification Examination for Amex. All submissions should refer to Regular Members, the Qualification Examination for File No. SR–Amex–94–51 and should be Statement of the Purpose of, and Options Principal Members, the Put and Call Stock submitted by June 28, 1995. Statutory Basis for, the Proposed Rule Option Exam, the Put and Call Option It is therefore ordered, pursuant to Change Questionnaire for Registered Personnel, the Specialist Exam and the Registered Equity Trader 23 Section 19(b)(2) of the Act, that the In its filing with the Commission, the and Registered Equity Market Maker Exam. proposed rule change (File No. SR– self-regulatory organization included 2 See Securities Exchange Act Release No. 35488 Amex–94–51), as amended, is approved. statements concerning the purpose of, (Mar. 14, 1995) 60 FR 14986 (File No. SR–Amex– For the Commission, by the Division of and basis for, the proposed rule change 94–46). 3 Professional customers are defined as a: bank, Market Regulation, pursuant to delegated and discussed any comments it received authority.24 trust company, insurance company, investment on the proposed rule change. The text trust, state or political subdivision thereof, Margaret H. McFarland, of these statements may be examined at charitable or nonprofit educational institution Deputy Secretary. regulated under the laws of the United States, or the places specified in Item III below. any state, or pension or profit-sharing plan subject [FR Doc. 95–13892 Filed 6–6–95; 8:45 am] The self-regulatory organization has to ERISA or of any agency of the United States, or BILLING CODE 8010±01±M prepared summaries, set forth in any state or a political subdivision thereof or any Sections A, B, and C below, of the most person (not including a natural person) who has, or 21 The Commission believes the amended significant aspects of such statements. has under management, net tangible assets of at proposal is more restrictive in that it clarifies the least sixteen million dollars. obligations that Traders must satisfy in order to A. Self-Regulatory Organization’s 4 Exchange Rule 50(c) provides that: The obtain market maker treatment for off-floor opening Statement of the Purpose of, and Exchange may require that a member pass transactions and obligates the Exchange to initiate additional examinations before undertaking disciplinary proceedings against members who Statutory Basis for, the Proposed Rule particular types of activities. improperly accept market maker treatment for such Change 5 See Securities Exchange Act Release No. 35488 transactions. (Mar. 14, 1995) 60 FR 14986 (File No. SR–Amex– 22 See Exchange Act Release No. 34104, supra 1. Purpose 94–46). note 20. 6 See Securities Exchange Act Release Nos. 32698 Exchange Rule 50(a) requires every (July 29, 1993), 58 FR 41539 (File No. SR–NYSE– 23 15 U.S.C. 78s(b)(2) (1988). applicant for regular or options 93–10); 34334 (July 8, 1994) 59 FR 35964 (File No. 24 17 CFR 200.30–3 (a)(12) (1994). principal membership to pass a SR–NYSE–94–13). Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30125 2. Statutory Basis believes that the proposed rule change of publication of notice of filing thereof The proposed rule change is is consistent with Sections 6(b)(5) and in the Federal Register. The 7 consistent with Section 6(b) of the Act 6(c)(3)(B) of the Act. Section 6(b)(5) Commission believes that accelerated in general and furthers the objectives of requires, among other things, that the approval is appropriate given the prior Sections 6(b)(5) and 6(c)(3) in particular rules of an exchange be designed to approval of the examinations and their in that it is designed to examine the promote just and equitable principles of use on the NYSE and because the training, experience and competence of trade, to remove impediments to and accelerated approval will allow Amex to Amex members and persons associated perfect the mechanism of a free and begin utilizing the examinations as soon with them, and to verify the open market and a national market as practicable. qualifications of such persons with system, and, in general, to protect It Is Therefore Ordered, pursuant to 10 respect to Amex membership. In investors and the public interest. Section 19(b)(2) of the Act, that the addition, the proposed rule change Section 6(c)(3)(B) provides that a proposed rule change (SR–Amex–95– serves to protect investors and the national securities exchange may 18) is approved. public interest by helping to assure examine and verify the qualifications of For the Commission, by the Division of Market Regulation, pursuant to delegated member competence. an applicant to become a person associated with a member in accordance authority.11 B. Self-Regulatory Organization’s with procedures established by the rules Margaret H. McFarland, Statement on Burden on Competition of the exchange, and require any person Deputy Secretary. The proposed rule change will impose associated with a member, or any class [FR Doc. 95–13898 Filed 6–6–95; 8:45 am] no burden on competition. of such persons, to be registered with BILLING CODE 8010±01±M the exchange in accordance with C. Self-Regulatory Organization’s procedures so established. Statement on Comments on the The Commission also believes that the [Release No. 34±35785; File No. SR±CBOE± Proposed Rule Change Received from proposed rule change is consistent with 94±54] Members, Participants or Others 8 Section 15(b)(7) of the Act, which Self-Regulatory Organizations; No written comments were solicited stipulates that prior to effecting any Chicago Board Options Exchange, or received with respect to the proposed transaction in, or inducing the purchase Inc.; Order Approving Proposed Rule rule change. or sale of, any security, a registered Change and Notice of Filing and Order broker or dealer must meet certain III. Solicitation of Comments Granting Accelerated Approval of standards of operational capability, and Amendment No. 1 to the Proposal Interested persons are invited to that such broker or dealer and all Relating to Firm Quote submit written data, views, and natural persons associated with such Responsibilities arguments concerning the foregoing. broker or dealer must meet certain Persons making written submissions standards of training, experience, May 31, 1995. should file six copies thereof with the competence, and such other On January 4, 1995, the Chicago Secretary, Securities and Exchange qualifications as the Commission finds Board Options Exchange, Inc. (‘‘CBOE’’ Commission, 450 Fifth Street, N.W., necessary or appropriate in the public or ‘‘Exchange’’) submitted to the Washington, D.C. 20549. Copies of the interest or for the protection of Securities and Exchange Commission submission, all subsequent investors. (‘‘SEC’’ or ‘‘Commission’’), pursuant to amendments, all written statements The Commission believes that the Section 19(b) of the Securities Exchange with respect to the proposed rule proposed requirement that members Act of 1934 (‘‘Act’’),1 and Rule 19b-4 change that are filed with the who accept orders from profession thereunder,2 a proposed rule change to Commission, and all written customers for execution on the Amex expand the applicability of CBOE Rule communications relating to the trading Floor pass the Series 7A 8.51, its firm quote rule, to certain two- proposed rule change between the examination is consistent with the Act. part equity option orders in an attempt Commission and any person, other than Moreover, the Commission believes that to allow public customers to execute those that may be withheld from the the proposed requirement that the clerks defined risk strategies, such as spreads public in accordance with the of such Floor members pass the new and straddles, at the disseminated provisions of 5 U.S.C. § 552, will be Series 7B examination also is consistent market quotes. available for inspection and copying at with the Act. These requirements Notice of the proposed rule change the Commission’s Public Reference should help to ensure that only those was published for comment and Section, 450 Fifth Street, N.W., Floor members and Floor clerks with a appeared in the Federal Register on Washington, D.C. 20549. Copies of such comprehensive knowledge of Exchange February 14, 1995.3 No comments were filing will also be available for rules and the Act are able to accept received on the proposal. On May 24, inspection and copying at the principal orders from professional customers for 1995, the CBOE submitted Amendment office of the Exchange. All submissions execution on the trading Floor.9 No. 1 to the filing (‘‘Amendment No. 1’’) should refer to File No. SR–Amex–95– The Commission finds good cause for in order to clarify certain non- 18 and should be submitted by June 28, approving the proposed rule change substantive matters.4 This order 1995. prior to the thirtieth day after the date approves the proposal, as amended. IV. Commission’s Findings and Order 7 15 U.S.C. 78f(b)(5) and (c)(3)(B) (1988 & Supp. 10 15 U.S.C. § 78s(b)(2) (1988). Granting Accelerated Approval of V 1993). 11 17 CFR 200.30–3(a)(12) (1994). Proposed Rule Change 8 16 U.S.C. 78o(b)(7) (1988). 1 15 U.S.C. § 78s(b)(1) (1988 & Supp. V 1993). 9 The Exchange will continue to require the 2 The Commission finds that the successful completion of the Series 7 examination 17 CFR 240.19b–4 (1994). proposed rule change is consistent with for members and their Floor clerks seeking to 3 See Securities Exchange Act Release No. 35345, the requirements of the Act and the become registered representatives dealing with 60 FR 8433. 4 rules and regulations thereunder other than professional customers. In addition, any See Letter from Michael L. Meyer, Schiff Hardin person who has successfully completed the Series & Waite, to Michael A. Walinskas, Chief, Options pertaining to a national securities 7 Examination will not be required to complete the Branch, SEC, dated May 24, 1995. Specifically, exchange. In particular, the Commission Series 7A and 7B Examinations. Continued 30126 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices I. Description of the Proposal believes, however, that it is placed as a separate order, the The purpose of the proposed rule inappropriate, under any circumstance, Commission does not believe the change is to expand the applicability of to extend the firm-quote treatment to proposal will impose any additional CBOE Rule 8.51, its firm quote (‘‘firm multipart orders with all parts on the unnecessary burdens or capital risks quote’’) or ten-up (‘‘ten-up’’) rule, to same side of the market as this would upon market makers. The Commission also notes that the include two-part equity option orders in effectively impose the burden on proposal will only apply to two-part which the component series are on options market-makers of making equity option orders in which the opposite sides of the market and in a markets in the underlying security. For components are on opposite sides of the one-to-one ratio. The CBOE believes this example, a position in a long call and market and in a one-to-one ratio. The change will enhance the ability of a short put is economically equivalent Commission believes these conditions public customers to execute defined risk to being long the underlying stock; and are reasonable measures that should strategies, such as spreads and thus, requiring a trading crowd to provide firm quote treatment to an order help ensure that the proposal will not straddles, at the disseminated market for this position would essentially be allow the simultaneous execution of quotes.5 certain types of orders that otherwise CBOE Rule 8.51 places the requiring the option market-makers to might effectively raise the firm quote responsibility on the trading crowd to act as market-makers in the underlying 6 requirements above the current ten ensure that non-broker-dealer customer security. contracts limit, which could create orders are sold or bought, up to ten II. Discussion disparate firm quote treatment for ‘‘one’’ contracts, at the quoted offer or bid, The Commission finds that the versus ‘‘two’’ part orders. respectively. This ‘‘firm quote’’ or ‘‘ten- proposed rule change is consistent with The Commission finds good cause for up’’ requirement is meant to provide the requirements of the Act and the approving Amendment No. 1 to the confidence that the displayed quotes rules and regulations thereunder proposed rule change prior to the may be relied upon by the investing applicable to a national securities thirtieth day after the date of public and to ensure that public exchange, and, in particular, the publication of notice of filing thereof in customer orders will be executed at requirements of Section 6(b)(5).7 In the Federal Register. Amendment No. 1 those quotes, or better. particular, the Commission believes the adopts Interpretation and Policy .06 to From its inception the ten-up rule was proposal is consistent with the Section Rule 8.51, which reflects in summary intended to apply to, and has been 6(b)(5) requirement that the rules of an form the policy described in the interpreted to apply only to, single part exchange be designed to promote just Regulatory Circular. Because the orders, i.e., either a buy order or a sell and equitable principles of trade and Regulatory Circular was included as order for a particular option series. The not to permit unfair discrimination part of the filing, the substance and Exchange has determined, however, that between customers, issuers, brokers, policy of which were discussed in the public customers would be served better and dealers. notice, the Commission does not believe if the interpretation were expanded to The Commission believes that the that Amendment No. 1 raises any new include a requirement to provide a ten- CBOE’s proposal to modify its current or substantive issues. Therefore, the up market in two-part equity option ten-up rule should expand the benefits Commission believes it is consistent orders in which the components of the to public customers associated with ten- with Sections 6(b)(5) and 19(b)(2) of the order are on opposite sides of the up markets. In general, the ten-up rule Act to approve Amendment No. 1 to the market and in a one-to-one ratio to each results in faster executions of public proposal on an accelerated basis. other. The expansion in the customer orders and improves the III. Solicitation of Comments interpretation of this rule would make it quality of the Exchanges’ options possible for public customers to execute markets and market maker performance. Interested persons are invited to both sides of a defined risk strategy, for Specifically, the proposal will extend submit written data, views and up to ten contracts on each side, such the ten-up rule to each leg of certain arguments concerning the foregoing. as a spread or a straddle, at the two-part equity options. Accordingly, Persons making written submissions disseminated prices. The exchange small public customers will be assured should file six copies thereof with the believes the rule change should help it order execution for both parts of the Secretary, Securities and Exchange compete more effectively for public order at the same time and at the best Commission, 450 Fifth Street, N.W., customer order flow and trading bid or offer to a minimum depth of ten Washington, D.C. 20549. Copies of the activity. contracts. Accordingly, the proposal submission, all subsequent The Exchange does not believe this should result in better executions for amendments, all written statements rule change would be burdensome to these types of non-broker dealer with respect to the proposed rule market-makers because, under the customer orders. change that are filed with the current interpretation, the market- The Commission also believes the Commission, and all written makers would be required to satisfy the proposal will provide greater depth to communications relating to the ten-up requirement as to each leg of a the option markets without imposing proposed rule change between the spread or straddle if each was placed as any undue burdens upon market Commission and any person, other than a separate order. This rule change makers. Because market makers are those that may be withheld from the would merely ensure that these two already required to satisfy the ten-up public in accordance with the components may be done at the same requirement as to each leg of two part provisions of 5 U.S.C. 552, will be time, as one order, and at the same equity option orders as if each was available for inspection and copying at prevailing market quotes. The Exchange the Commission’s Public Reference 6 Under existing Rule 8.51, the firm quote size Section, 450 Fifth Street, N.W., Amendment No. 1 proposes to add Interpretation minimum will continue to not apply whenever a Washington, D.C. 20549. Copies of such and Policy .06 to CBOE Rule 8.51. ‘‘fast market’’ is declared under Rule 6.6, and may filing will also be available for 5 In its filing, the CBOE included a draft be suspended for any class or series on a case by regulatory circular to be issued to members case basis as determined by the Market Performance inspection and copying at the principal describing the change in policy applicable to the Committee. office of the Amex. All submissions ten-up guarantee under CBOE Rule 8.51. 7 15 U.S.C. 78f(b)(5) (1982). should refer to File No. SR–CBOE–94– Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30127 54 and should be submitted by June 28, 2 to the proposal on May 10, 1995,4 and include the status of the trading 1995. Amendment No. 3 to the proposal on rotation 8 as a factor that may be It Therefore Is Ordered, pursuant to May 31, 1995.5 considered in a decision whether to halt Section 19(b)(2) of the Act,8 that the Notice of the proposal was published or suspend trading. Although not proposed rule change (SR–CBOE–94– for comment and appeared in the presently explicit in the CBOE rules, the 54) is approved, as amended. Federal Register on February 27, 1995.6 Exchange states that its current practice For the Commission, by the Division of No comment letters were received on includes consideration of the rotation Market Regulation, pursuant to delegated the proposed rule changes. This order status in deciding whether to halt or authority.9 approves the Exchange’s proposal, as suspend trading. An explicit statement Margaret H. McFarland, amended. would notify members and the public Deputy Secretary. II. Description of the Proposal that, when deciding whether to halt [FR Doc. 95–13899 Filed 6–6–95; 8:45 am] trading, Floor Officials may consider the The CBOE proposes to amend its rules BILLING CODE 8010±01±M extent to which the rotation has been and Regulatory Circulars RG94–17 completed and other factors regarding (‘‘Inter-Exchange Procedures in Volatile the status of the rotation. When [Release No. 34±35789; File No. SR±CBOE± Markets’’) and RG93–58 (formerly deciding whether to suspend trading, 95±05] RG92–40 (‘‘Trading Halt Policy’’) to the Board of Directors similarly would codify existing practices regarding the Self-Regulatory Organizations; Order be able to consider the extent to which factors the Exchange considers in the rotation is complete and other Approving Proposed Rule Changes deciding whether to halt or suspend and Notice of Filing and Order factors regarding the status of the trading and the circumstances under rotation. Granting Accelerated Approval of which trading is generally halted or Amendment Nos. 1, 2, and 3 to the suspended by the Exchange. The CBOE B. Regulatory Halt or Suspension Proposed Rule Changes by the also proposes to establish procedures for CBOE further proposes to add Chicago Board Options Exchange, the resumption of trading after a halt or Interpretation .04 to Rule 6.3 and Incorporated, Relating to Trading suspension is lifted, and to grant the Interpretation .01 to Rule 6.4 to reflect Halts, Trading Suspensions, the Re- senior person in charge of the Control the current CBOE practice that, in opening of Trading after a Trading Halt 7 Room the authority to turn off RAES general, trading in a stock option will be or Suspension, and the Suspension of for a particular stock option if the halted when a regulatory halt in the the Retail Automatic Execution System Control Room receives a credible underlying stock has occurred in the indication that trading in the underlying May 31, 1995. primary market for that stock. Pursuant stock has been halted. to Rule 6.3, any two Floor Officials may I. Introduction A. Status of Rotation as Factor halt trading in any security in the On January 18, 1995, the Chicago Considered in Halt or Suspension interests of a fair and orderly market for Board Options Exchange, Incorporated Specifically, the CBOE proposes to a period not in excess of two (‘‘CBOE’’ or ‘‘Exchange’’), filed amend Rules 6.3(a), 6.4(a) and 24.7(a) to consecutive business days. Similarly, proposed rule changes with the the proposal reflects the current CBOE Securities and Exchange Commission Regulation’’), Commission, dated February 17, practice that, in general, trading in a (‘‘SEC’’ or ‘‘Commission’’), pursuant to 1995. (‘‘Amendment No. 1’’.) stock option will be suspended when a Section 19(b)(1) of the Securities 4 Amendment No. 2 proposes to amend regulatory suspension in the underlying Exchange Act of 1934 (‘‘Act’’) 1 and Rule Interpretation .05 to CBOE Rule 6.3 to indicate that stock has occurred in the primary 2 the senior person in the Control Room may rely on 19b–4 thereunder, to: (1) Codify the a verified report from the CBOE trading crowd as market for that stock. In the case of a Exchange’s existing practice regarding a credible indication of a trading halt or suspension regulatory suspension, the Board of the factors considered and in the primary market of an underlying security. Directors is authorized under Rule 6.4 to circumstances under which the CBOE also proposes to clarify that its proposed suspend trading in any security in the rescission of CBOE Rule 6.3A is intended to Exchange could decide to halt or encompass the two Interpretations and Policies interests of a fair and orderly market for suspend trading in its markets; (2) previously adopted for that rule. See Letter from an indefinite period. establish procedures for the resumption Michael Meyer, Schiff, Hardin & Waite, to John Rules 6.3 and 6.4 list factors of trading after a halt or suspension is Ayanian, Attorney, Market Regulation, OMS, considered in deciding whether to halt Commission, dated May 10, 1995. (‘‘Amendment lifted; and (3) grant the senior person in No. 2’’.) or suspend trading. While the factors charge of the CBOE Control Room the 5 Amendment No. 3 proposes to amend listed are considered in deciding authority to turn off the Retail Regulatory Circular RG93–58 to indicate that two whether to halt trading, when a Automatic Execution System (‘‘RAES’’) Floor Officials may permit trading to continue for regulatory halt in the underlying stock if the Control Room receives a credible more than 15 minutes after a failure of last sale and/ has been declared in the primary or quotation dissemination from either the indication that trading has stopped in Exchange or the Options Price Reporting Authority market, generally the Exchange will halt the underlying stock. The Exchange (‘‘OPRA’’) only with the concurrence of a senior or suspend trading in the overlying filed Amendment No. 1 to the proposal Exchange official. See Letter from Michael Meyer, stock option. The Exchange believes on February 21, 1995,3 Amendment No. Schiff, Hardin & Waite, to John Ayanian, Attorney, that the close relationship between the Market Regulation, OMS, Commission, dated May 31, 1995. (‘‘Amendment No. 3’’.) underlying stock and the pricing of 8 15 U.S.C. § 78s(b)(2) (1988) 6 See Securities Exchange Act Release No. 35397 stock options overlying that security 9 17 CFR 200.30–3(a)(12) (1994). (February 21, 1995), 60 FR 10621 (February 27, typically justify such a result. When a 1 15 U.S.C. 78s(b)(1). 1995). regulatory halt is declared in the 2 17 CFR 240.19b–4. 7 RAES automatically executes public customer underlying stock, it often is because 3 Amendment No. 1 proposes to delete the market and marketable orders of a certain size reference to Rule 6.3A in paragraph (c) of Rule 24.7, against participating market makers in the CBOE some news is pending regarding the because the rule change proposes the deletion of trading crowd at the best bid or offer reflected in Rule 6.3A in its entirety. See Letter from Michael the CBOE quotation system. A more detailed 8 A ‘‘trading rotation’’ is a series of very brief time Meyer, Schiff, Hardin & Waite, to John Ayanian, description of RAES is provided in Securities periods during which bids, offers, and transactions Attorney, Office of Market Supervision (‘‘OMS’’), Exchange Act Release No. 22015 (May 6, 1985), 50 in only a single, specific option contract can be Division of Market Regulation (‘‘Market FR 19832 (May 10, 1985). made. See CBOE Rule 6.2. 30128 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices underlying stock and the primary in effect in the primary market of the by making a general announcement to market wants to allow time for the securities constituting 50% or more of all Order Book Officials. The CBOE dissemination of such news. For the the index value; and (iii) two Floor believes it is reasonable to presume that same reason, the CBOE believes it Officials, in consultation with a a reopening rotation will be held after generally is appropriate in that designated senior executive officer, a circuit breaker halt because, after a circumstance to halt trading in the must conclude in their judgment that floorwide halt, it is physically difficult overlying stock option. the interests of a fair and orderly market to have two Floor Officials available at CBOE also proposes to amend Rules are served by a resumption of trading. each trading post to make a decision 6.3(a)(iii) and 6.4(a)(ii) to clarify that The effect of this proposal is that after regarding the resumption of trading. The these rules are only applicable to non- a circuit breaker halt, trading would Exchange believes that the presumption option securities. Securities other than resume automatically unless the allows for a universal treatment of the options include, for example, securities Exchange affirmatively acted to declare reopening after a circuit breaker halt, yet traded at CBOE that are subject to a further halt or suspension pursuant to still permits appropriate Exchange Chapter 30 of the CBOE Rules. other rules, such as Rules 6.3, 6.4 or officials to exercise judgment to deviate Securities presently subject to Chapter 24.7. from this presumed course of action 30 include stock, warrants (which term CBOE believes that trading should when a different method of reopening is includes currency and index warrants generally resume after a circuit breaker appropriate. except as otherwise expressly provided halt, subject only to the rules regarding or as the context otherwise requires), trading halts and suspensions. Pursuant D. Corresponding Amendments to UIT interests, and such other securities to Rules 6.3, 6.4 and 24.7, a halt or Regulatory Circulars instruments and contracts as the Board suspension in the underlying security 1. Regulatory Circular RG94–17 of Directors may from time to time (to which Rule 6.3A refers) are among The Exchange also proposes to amend declare subject to Chapter 30. The the factors considered in the decision to Regulatory Circular RG94–17, which Exchange believes the changes are suspend or halt trading, but these addresses inter-exchange procedures in necessary to clarify that Rules 6.3(a)(iii) factors do not necessarily require a halt volatile markets, to make the content of and 6.4(a)(ii) do not apply to stock or suspension nor limit the Exchange’s the circular consistent with the options or any other options traded at ability to exercise judgment in these proposed amended Interpretation .02 to CBOE, but only to securities traded at circumstances. CBOE believes that the Rule 6.3B. Regulatory Circular RG94–17 CBOE other than options. interests of a fair and orderly market are discusses the CBOE’s procedures during better served when the rules allow C. Circuit Breaker Halts and Subsequent a halt in options trading due to a DJIA Exchange officials the discretion to Reopening Rotations drop of 250 or more points below the evaluate market conditions and The proposal also would rescind Rule previous day’s closing trading value, or circumstances and to exercise their a cumulative drop of 400 points in the 6.3A, which provides for a trading halt judgment as to when to halt or suspend in all equity and index options when DJIA on the same day. Pursuant to the trading, without the restrictions on the proposed change to Interpretation .02 to there has been a floor-wide New York exercise of that judgment that are Stock Exchange (‘‘NYSE’’) halt or Rule 6.3B, after the expiration of the one contained in Rule 6.3A. or two hour period set forth in Rule suspension as a result of activation of The rescission of Rule 6.3A also 6.3B, a reopening rotation would be circuit breakers on the NYSE. The CBOE removes the current requirement that, if held in each class of options unless two believes that this rule is unnecessary trading is halted due to activation of Floor Officials (or an Order Book because the only circumstances under circuit breakers, reopening rotations Official acting upon authorization from which Rule 6.3A could apply are shall be held. Rule 6.3A makes a a senior Exchange official) conclude a situations that Rule 6.3B already reopening rotation mandatory and different method of reopening is expressly governs. Presently, there are prevents Exchange officials from appropriate. Additionally, Regulatory only two circuit breakers that lead to a reopening without a rotation. CBOE Circular RG95–17 would be amended to New York Stock Exchange floor-wide believes the interests of a fair and delete the requirements contained in halt; when there has been a decline in orderly market are better served when Rule 6.3A that, before reopening after a the Dow Jones Industrial Average of 250 the rules allow Exchange officials the circuit breaker halt, the Exchange must or more points below the previous day’s discretion to evaluate market conditions verify that (1) there is no halt or closing value, and when on the same and circumstances and to exercise their suspension in effect in the primary day there is a cumulative decline of 400 judgment as to whether to reopen with market where the underlying stock is or more points from the previous day’s or without a rotation. traded and (2) with respect to an index closing value. Rule 6.3B already governs Procedures regarding reopening option, there is no halt or suspension in trading halts under both of these rotations after a halt triggered by circuit the primary market of the securities circumstances. Under Rule 6.3B, the breakers will be added by amending constituting 50% of the index. mandatory circuit breaker halt would Rule 6.3B, Interpretation .02. The terminate automatically after the amended Interpretation .02 would 2. Regulatory Circular RG93–58 expiration of the applicable one hour or require a reopening rotation unless two The CBOE further proposes to amend two hour time period. Floor Officials, or an Order Book Regulatory Circular RG93–58, which The proposal would eliminate the Official acting on authorization from a addresses trading halt policy for options requirements contained in Rule 6.3A senior Exchange official, conclude it is on individual equity securities, to make that, prior to a reopening rotation, (i) an appropriate under the circumstances to the circular consistent with the additional determination must be made employ a different method of reopening, proposed amendment to Rule 6.3.9 that a halt or suspension is not in effect including but not limited to, no rotation, Regulatory Circular RG93–58 would be in the primary market where the an abbreviated rotation, or a variation in further amended to state that it does not underlying security for each class of the manner of the rotation. The senior address the Exchange’s trading halt options is traded; (ii) a determination Exchange official could authorize the must be made, in the case of index order Book Officials to deviate from 9 Regulatory Circular RG93–58 is a reprint of options, that a halt or suspension is not normal reopening rotation procedures Regulatory Circular RG92–40, dated July 8, 1992. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30129 policy when a halt has been declared as 15 minutes after notification to the news connection with a primary market floor- a result of the operation of a circuit wire services. The guidelines provide wide trading halt not subject to Rule breaker pursuant to Rule 6.3B, due to a that the news wire services will be 6.3B, and despite the determination by 250 or 400 point intra-day drop in the notified of the dissemination difficulty. two Floor Officials that sufficient DJIA. However, under such circumstances, markets will support trading other than Consistent with Rule 6.3, Regulatory since trading presumably would have at the primary market, trading may Circular RG93–58 would be amended to been proceeding in other markets, it is resume only upon a one hour provide that two Floor Officials may important for the options market to notification to the news wire services. exercise judgment regarding trading resume trading as soon as practical after Again, since trading of the underlying halts without the concurrence of a the dissemination difficulty which led stock is continuing at an exchange other senior Exchange staff official. Presently, to the halt is no longer present. CBOE than the primary exchange, the CBOE Rule 6.3 provides that a decision believes that waiting 15 minutes to believes that waiting one hour to resume regarding whether to halt trading may resume trading would be inordinately options trading at the CBOE could be be made by any ‘‘two Floor Officials.’’ long and may be contrary to the inordinately long and might be contrary This amendment would make the interests of a fair and orderly market. to the interests of a fair and orderly guidelines in Regulatory Circular RG93– Nonetheless, the proposed amendments market. Instead, paragraphs one and six 58 consistent with the Rule 6.3. The would specifically state CBOE’s general of Regulatory Circular RG93–58 would Exchange believes that Floor Officials practice to notify member firms and be amended so that the guidelines for need to be able to exercise their news wire services before the the resumption of trading would be judgment without obtaining the resumption of trading. consistent with Rule 6.3(b), which concurrence of a senior Exchange staff The language in paragraph one of provides that trading in a security that official because it may be physically Regulatory Circular RG93–58 would be has been the subject of a halt may difficult for a senior Exchange staff further amended to clarify that there is resume upon a determination by two official to be present at all trading posts a preference, but not a requirement, to Floor Officials that the conditions during circumstances where a trading halt trading if two Floor Officials which led to the halt are no longer halt may be simultaneously necessary in believe that the dissemination problem present, or that the interests of a fair and multiple options classes. will last more than 15 minutes. orderly market are best served by a Regulatory Circular RG93–58 provides Additionally, the language would be resumption of trading. However, the Floor Officials with non-mandatory amended to limit the discretion of the proposed amendments would guidelines to assist them in their Floor Officials by requiring the specifically state CBOE’s general decision regarding a trading halt. concurrence of a senior Exchange practice to notify member firms and Pursuant to Rule 6.3, ‘‘[a]ny two Floor official if two Floor Officials want to news wire services before the permit trading to continue for more than Officials may halt trading in any resumption of trading. security in the interests of a fair and 15 minutes after a failure of last sale orderly market.’’ Rule 6.3 permits Floor and/or quotation dissemination. The E. RAES Officials to exercise judgment and language would be further amended to Finally, the proposal would add discretion in deciding whether to halt clarify that, if the two Floor Officials Interpretation .05 to Rule 6.3 to grant trading. The language of rule 6.3 is believe that the dissemination problem authority to the senior person then in discretionary and does not require that will be resolved within the next 15 charge of the Exchange’s Control Room Floor Officials declare a trading halt. minutes, then there is no preference for to turn off RAES with respect to a stock The proposed amendments to a halt—even if that expectation proves option if that senior person confirms Regulatory Circular RG93–58 delete to be incorrect. The present language that the Control Room has received a would be further amended to clarify that language that would limit Floor credible indication (including, but not trading ordinarily will continue if two Official’s discretion by imposing limited to, a verified report from the Floor Officials believe it is likely the mandatory criteria. trading crowd)11 that trading in the dissemination problem will be resolved The proposal would further amend underlying stock has been halted or in less than 15 minutes. The present Regulatory Circular RG93–58 to reflect suspended. After exercising such language appears to require trading to the CBOE’s general practice, as set forth authority, that senior person would in the proposed interpretation to Rule continue under such circumstances. Again, the Exchange believes these 6.3, to halt trading in an overlying stock 11 CBOE represents that if information of a trading option when a regulatory halt in the guidelines should not limit Floor halt or suspension comes from the trading crowd underlying stock has been declared in Officials’ discretion, since Rule 6.3 or from a source other than authoritative provides for discretion in such information in the Control Room, the senior person the primary market for that stock. in charge of the Control Room would first attempt Regulatory Circular RG93–58 would circumstances. If a systems problem to independently verify the information before be further amended to delete the prevented CBOE or OPRA from turning off RAES. To verify the existence of a requirement that, in connection with a disseminating CBOE’s last sale or quote trading halt or suspension, the senior person in data, this would be an unusual market charge of the Control Room would seek to identify halt due to no last sale and/or quotation and obtain authoritative information in the Control dissemination either by the Exchange or condition and, pursuant to Rule 6.3, two Room, including (1) the quote of the underlying the Options Price Reporting Authority Floor Officials may halt trading. security being pulled from the Class Display Screen, The CBOE proposes to delete the (2) an ST or H appearing on the Class Display (‘‘OPRA’’),10 trading may only resume requirement in paragraph four of Screen via the Consolidated Tape, (3) a print-out in Regulatory Circular RG93–58 that, in the Control Room confirming the halt or suspension 10 OPRA is a National Market System Plan of trading in the underlying security, and (4) approved by the Commission pursuant to Section notification of the trading halt or suspension via the 11A of the Act and Rule 11Aa3–2. Securities American Stock Exchange, the Pacific Stock ‘‘Hoot and Holler’’ system. The Hoot and Holler Exchange Act Release No. 17638 (March 18, 1981). Exchange, and the New York Stock Exchange. system is a voice linkage between all of the OPRA provides for the collection and The OPRA plan was implemented in response to exchanges and the Commission. Telephone dissemination of last sale and quotation information directives of the SEC that provisions be made for conversation between Edward Joyce, Executive Vice on options that are traded on the five exchanges the consolidated reporting of transactions in eligible President, CBOE, and John Ayanian, Attorney, participating in the plan. The exchanges include the options contracts listed and traded on national OMS, Market Regulation, Commission, on February CBOE, the Philadelphia Stock Exchange, the securities exchanges. 16, 1995. 30130 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices need to immediately seek confirmation III. Commission Finding and The Commission further believes that of this decision from two Floor Officials. Conclusions it is appropriate to amend Rules The purpose of this interpretation is to 6.3(a)(iii) and 6.4(a)(ii) to clarify that prevent orders from being placed on The Commission finds that the these rules are only applicable to non- RAES during the interval after the proposed rule change is consistent with option securities. Currently, Rule trading in the underlying stock has been the requirements of the Act and the 6.3(a)(iii) and Rule 6.4(a)(ii) state that halted or suspended but before two rules and regulations thereunder the rules apply to any security other Floor Officials have declared a trading applicable to a national securities than a stock option. The Commission halt pursuant to Rule 6.3(a) or before a exchange. In particular, the Commission believes that the amendments clarify the Post Director or Order Book Official has finds that the proposed rule change is proper application of the rule to non- suspended trading pursuant to consistent with Section 6(b)(5) of the option securities such as stock, UIT 13 Interpretation .01 to Rule 6.3. The CBOE Act which requires, among other interests, and warrants. believes this provision is necessary things, that the rules of an exchange be Further, the Commission believes that because, if trading in a stock is halted designed to promote just and equitable it is appropriate to rescind Rule 6.3A, due to pending news, the effect of the principles of trade, remove which provides for a halt in trading of news may be anticipated and, while impediments to and perfect the all equity and index options when there Floor Officials are being called to a post mechanism of a free and open market has been a floor-wide New York Stock to decide whether to halt trading, orders and a national market system, while Exchange halt or suspension as a result could still be placed on RAES. Under protecting investors and the public of activation of circuit breakers on the the current Interpretations to Rule 6.3, interest. New York Stock Exchange. The the Post Director or Order Book Official Specifically, the Commission believes Commission understands that the only must turn off RAES concurrently with it is appropriate to amend Rules 6.3(a), circumstances under which Rule 6.3A any suspension of trading. If an ‘‘ST’’ 6.4(a) and 24.7(a) to include the status could apply are situations that Rule symbol (for an exchange listed security) of the trading rotation as a factor that 6.3B already expressly governs and, as or an ‘‘H’’ symbol (for a security traded may be considered in a decision a result, the rule is redundant. The primarily in the over-the-counter whether to halt or suspend trading. The rescission of Rule 6.3A will have the market) is displayed on the Class Commission notes that there may be effect of removing the mandatory Display Screen that displays current circumstances in which it could be in reopening rotation (and related market information for the underlying the interest of a fair and orderly market procedures) following a floor-wide security, the Order Book Official or Post to complete a rotation before calling a NYSE trading halt. However, the Director may suspend trading in the halt or suspension in trading. For Commission believes that the proposed related equity option for a period not to example, CBOE officials may want to amendment to Interpretation .02 to Rule exceed five minutes and concurrently consider the status of a trading rotation 6.3B appropriately addresses this shall turn off RAES for the affected in the event of extreme market volatility circumstance. Interpretation .02 to Rule options class or classes.12 The Control or a pending news announcement. 6.3B requires a reopening rotation in Room, however, may receive Allowing Floor Officials, in the case of each class of options following a circuit information that trading has stopped in a trading halt, and the Board of breaker halt unless two Floor Officials the underlying stock before the Post Directors, in the case of a suspension of (or an Order Book Official acting upon authorization from a senior Exchange Director or Order Book Official sees the trading, to evaluate the status of the official) conclude that a different ‘‘ST’’ symbol or ‘‘H’’ symbol on the rotation in determining whether to halt method of reopening is appropriate Class Display Screen for the underlying or suspend trading may contribute to under the circumstances, including but stock. Consequently, the CBOE believes their evaluation of how best to maintain not limited to, no rotation, an it is important for the Control Room to a fair and orderly market. abbreviated rotation, or any other have authority to turn off RAES without The Commission further believes that variation in the manner of the rotation. being required to wait for the Post it is appropriate to add Interpretation Moreover, the Commission believes that Director or Order Book Official to act, or .04 to Rule 6.3 and Interpretation .01 to the CBOE’s proposal to amend and in a circumstance where the senior Rule 6.4 to state that, in general, trading redistribute Regulatory Circular RG94– person in charge of the Control Room in a stock option will be halted or 17 to parallel the provisions of confirms that the Control Room has suspended when a regulatory halt or Interpretation .02 to Rule 6.3B, and received a credible indication that suspension in the underlying stock has notice the rescission of Rule 6.3A, are trading in the underlying stock has been occurred in the primary market for that necessary in order to notify to CBOE halted or suspended. stock. The Commission believes that a members of these reopening procedures. The proposal provides that the Post general practice whereby trading is The Commission also believes it is Director, Order Book Official, or their halted on the CBOE when investors lack appropriate to amend CBOE Regulatory representative will re-start RAES after access to current pricing information in Circular RG93–58 to reflect the the trading halt or suspension has the primary market for the underlying discretion granted to Floor Officials in ceased. This would be consistent with stock, should contribute to the Rule 6.3, as amended. Currently, CBOE Rules 6.8(f) and 24.15(f), which provide maintenance of fair and orderly markets. Regulatory Circular RG93–58 contains that each day RAES is available, a Post Moreover, the Commission believes that limiting language regarding the Floor Director or his representative will start the CBOE’s proposal to amend its Officials’ discretion when addressing RAES. Regulatory Circular RG93–58 to parallel trading halt and resumption of trading the provisions of Interpretation .04 to procedures. The CBOE’s proposed 12 See Securities Exchange Act Release No. 34126 Rule 6.3 and Interpretation .01 to Rule amendments to the Regulatory Circular (May 27, 1994), 59 FR 29309 (June 6, 1994) 6.4 will help make such procedures address the need to provide parallel (Approval Order giving the Order Book Officials or readily known and available to floor guidelines between the rules and the Post Director the authority to suspend trading, members. and to turn off RAES for the affected options class regulatory circulars regarding trading or class whenever trading in the underlying security halt and resumption of trading is halted). 1315 U.S.C. 78f(b)(15). procedures. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30131 The Commission also believes that it interpretation and is substantially Margaret H. McFarland, is appropriate for the CBOE to add similar to the original proposal. Deputy Secretary. Interpretation .05 to Rule 6.3 to grant Accordingly, the Commission believes [FR Doc. 95–13900 Filed 6–6–95; 8:45 am] the authority to the senior person then that it is consistent with Section 6(b)(5) BILLING CODE 8010±01±M in charge of the Exchange’s Control of the Act to approve Amendment No. Room to turn off RAES for a particular 2 to CBOE’s proposed rule changes on stock option if that senior person [Release No. 34±35781; File No. SR±PHLX± an accelerated basis. 95±29] confirms that the Control Room has The Commission also finds good received a credible indication that cause for approving Amendment No. 3 Self-Regulatory Organizations; Notice trading in the underlying stock has been prior to the thirtieth day after the date of Filing and Immediate Effectiveness halted or suspended. The proposed rule of publication of notice of filing thereof of Proposed Rule Change by the change should protect investors and the in the Federal Register. Specifically, Philadelphia Stock Exchange, Inc., public interest by enabling the senior Relating to an Increase in the person in charge of the Control Room to Amendment No. 3 clarifies that, pursuant to Regulatory Circular RG93– Maximum AUTO±X Order Size for U.S. take prompt action in response to Top 100 Index Options trading halts in underlying securities 58, two Floor Officials may permit verified in the Control Room, before the trading to continue for more than 15 May 30, 1995. ‘‘ST’’ or ‘‘H’’ symbol appears on the minutes after a failure of dissemination Pursuant to Section 19(b)(1) of the Class Display Screen, or the Post only with the concurrence of a senior Securities Exchange Act of 1934 Director or Order Book Official has Exchange official. The Commission (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is acted. The Commission notes that if believes that this amendment clarifies hereby given that on May 22, 1995, the information of an impending halt or the scope of authority granted to the Philadelphia Stock Exchange, Inc. suspension comes from the trading Floor Officials when invoking this (‘‘PHLX’’ or ‘‘Exchange’’) filed with the crowd or from a source other than provision and raises no new regulatory Securities and Exchange Commission authoritative information in the Control issues. Accordingly, the Commission (‘‘SEC’’ or ‘‘Commission’’) the proposed Room, the senior person in charge of the believes that it is consistent with rule change as described in Items I, II Control Room must first verify the Section 6(b)(5) of the Act to approve and III below, which Items have been information before turning off RAES.14 Amendment No. 3 to CBOE’s proposed prepared by the self-regulatory The Commission also finds good rule changes on an accelerated basis. organization. The Commission is cause for approving Amendment No. 1 Interested persons are invited to publishing this notice to solicit to the proposed rule change prior to the submit written data, views and comments on the proposed rule change thirtieth day after the date of arguments concerning Amendment Nos. from interested persons. publication of notice of filing thereof in 1, 2 and 3. Persons making written I. Self-Regulatory Organization’s the Federal Register. Specifically, submissions should file six copies Amendment No. 1 merely corrects a Statement of the Terms of Substance of thereof with the Secretary, Securities the Proposed Rule Change technical error in the proposed and Exchange Commission, 450 Fifth Currently, public customer market amendment to Rule 24.7. As filed, the Street, NW., Washington, D.C. 20549. and marketable limit orders for up to 25 proposed amendment showed ‘‘no Copies of the submission, all subsequent option contracts, as determined by the change’’ to paragraph (c) of that rule. In amendments, all written statements specialist, are eligible for execution fact, CBOE proposes to amend with respect to the proposed rule through AUTO–X, the automatic paragraph (c) to delete the reference to change that are filed with the execution feature of the PHLX’s Rule 6.3A, because the rule change Commission, and all written Automated Options Market (‘‘AUTOM’’) proposes the deletion of the latter rule communications relating to the system. The PHLX proposes to increase in its entirety. Accordingly, the proposed rule change between the the maximum AUTO–X order size Commission believes it is consistent Commission and any person, other than with Section 6(b)(5) of the Act to eligibility for public customer market those that may be withheld from the approve Amendment No. 1 to the and marketable limit orders in U.S. Top public in accordance with the CBOE’s proposal on an accelerated 100 Index (‘‘TPX’’) options from 25 to provisions of 5 U.S.C. 552, will be basis. 50 contracts. available for inspection and copying in Additionally, the Commission finds The text of the proposed rule change the Commission’s Public Reference good cause for approving Amendment is available at the Office of the Section, 450 Fifth Street NW., No. 2 prior to the thirtieth day after the Secretary, PHLX, and at the Washington, D.C. Copies of such filing date of publication of notice of filing Commission. thereof in the Federal Register. This will also be available for inspection and amendment clarifies that when the copying at the principal office of the II. Self-Regulatory Organization’s senior person in charge of the Control CBOE. All submissions should refer to Statement of the Purpose of, and Room receives a report from the trading File No. SR–CBOE–95–05 and should be Statutory Basis for, the Proposed Rule crowd that trading in the underlying submitted by June 28, 1995. Change stock has been halted or suspended in It is Therefore Ordered, pursuant to In its filing with the Commission, the the primary market, the report from the Section 19(b)(2) of the Act,15 that the self-regulatory organization included trading crowd must first be verified proposed rule changes (File No. SR– statements concerning the purpose of before turning off the RAES system with CBOE–95–05), as amended, are and basis for the proposed rule change respect to the stock option. The approved. and discussed any comments it received Commission believes that this For the Commission, by the Division of on the proposed rule change. The text amendment clarifies the responsibilities Market Regulation, pursuant to delegated of these statements may be examined at of the senior person in charge of the authority.16 the places specified in Item IV below. Control Room when invoking this The self-regulatory organization has 15 15 U.S.C. 78s(b)(2). prepared summaries, set forth in 14 See supra note 11. 16 17 CFR 200.30–3(a)(12). sections (A), (B), and (C) below, of the 30132 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices most significant aspects of such executed automatically at the (B) Self-Regulatory Organization’s statements. disseminated quotation price on the Statement on Burden on Competition (A) Self-Regulatory Organization’s Exchange and reported to the The PHLX does not believe that the Statement of the Purpose of, and originating firm. Orders that are not proposed rule change will impose any Statutory Basis for, the Proposed Rule eligible for AUTO–X are handled inappropriate burden on competition. manually by the specialist. Change (C) Self-Regulatory Organization’s The purpose of the proposal is to TPX options were approved recently Statement on Comments on the increase the maximum AUTO–X order for trading on the Exchange as broad- Proposed Rule Change Received From size eligibility for public customer based index options.4 The PHLX now Members, Participants or Others market and marketable limit orders in proposes to permit the use of AUTO–X No written comments were either TPX options from 25 to 50 contracts. for public customer market and solicited or received. AUTO–X, the automatic execution marketable limit orders of up to 50 feature of AUTOM, was approved by the contracts in TPX options. The Exchange III. Date of Effectiveness of the Commission as part of the AUTOM pilot believes that the proposed expanded Proposed Rule Change and Timing for program in 1991.1 AUTOM, which has AUTO–X parameter should improve the Commission Action operated on a pilot basis since 1988 and AUTOM system by offering the benefits Because the foregoing rule change: (1) was most recently extended through of AUTO–X to investors in TPX options Does not significantly affect the December 31, 1995,2 is an on-line who place a high premium on prompt protection of investors or the public system that allows electronic delivery of and efficient automatic executions for interest; (2) does not impose any options orders from member firms 50-lot orders at the displayed price. The significant burden on competition; and directly to the appropriate specialist on Exchange notes that the increase from a (3) does not become operative for 30 the Exchange’s trading floor. Currently, maximum of 25 to 50 contracts is in line days after May 22, 1995, the date on orders for up to 100 options contracts with prior changes; for example, the which it was filed, and the Exchange are eligible for AUTOM and public provided the Commission with written Commission previously approved an customer market and marketable limit notice of its intent to file the proposed AUTO–X increase for public customer orders for up to 25 contracts are eligible 5 rule change at least five days prior to the for AUTO–X.3 AUTO–X orders are orders from 10 to 20 contracts. filing date, it has become effective According to the PHLX, the proposed pursuant to Section 19(b)(3)(A) of the 1 See Securities Exchange Act Release No. 28978 expansion of the maximum AUTO–X Act and Rule 19b–4(e)(6) thereunder. In (March 15, 1991), 56 FR 12050 (order approving order size should not impose significant particular, the Commission believes that File No. SR–PHLX–90–34). the proposal does not significantly affect 2 See Securities Exchange Act Release No. 35183 burdens on the operation and capacity (December 30, 1994), 60 FR 2420 (January 9, 1995) of the AUTOM system. Instead, the the protection of investors or the public (order approving File No. SR–PHLX–94–41). See PHLX believes that increasing the interest and does not impose any also Securities Exchange Act Release Nos. 25540 number of public customer orders significant burden on competition. (March 31, 1988), 53 FR 11390 (order approving At any time within 60 days of the AUTOM on a pilot basis); 25868 (June 30, 1988), eligible for automatic execution, and 53 FR 25563 (order approving File No. SR–PHLX– thereby reducing manual processing, filing of such proposed rule change, the 88–22, extending pilot through December 31, 1988); may enhance AUTOM’s effectiveness. In Commission may summarily abrogate 26354 (December 13, 1988), 53 FR 51185 (order such rule change if it appears to the addition, the Exchange notes that the approving File No. SR–PHLX–88–33, extending Commission that such action is pilot program through June 30, 1989); 26522 Commission has previously approved (February 3, 1989), 54 FR 6465 (order approving necessary or appropriate in the public the automatic execution of 50 contracts interest, for the protection of investors, File No. SR–PHLX–89–1, extending pilot through 6 December 31, 1989); 27599 (January 9, 1990), 55 FR for a broad-based index. or otherwise in furtherance of the 1751 (order approving File No. SR–PHLX–89–03, The PHLX believes that the proposal purposes of the Act. extending pilot through June 30, 1990); 28625 (July is consistent with Section 6(b) of the 26, 1990), 55 FR 31274 (order approving File No. IV. Solicitation of Comments SR–PHLX–90–16, extending pilot through Act, in general, and, in particular, with December 31, 1990); 28978 (March 15, 1991), 56 FR Section 6(b)(5), in that it is designed to Interested persons are invited to 12050 (order approving File No. SR–PHLX–90–34), promote just and equitable principles of submit written data, views and extending pilot through December 31, 1991); 29662 trade and to prevent fraudulent and arguments concerning the foregoing. (September 9, 1991), 56 FR 46816 (order approving Persons making written submissions File No. SR–PHLX–91–31, permitting AUTO–X manipulative acts and practices, as well should file six copies thereof with the orders up to 20 contracts in Duracell options only); as to protect investors and the public 29782 (October 3, 1991), 56 FR 55146 (October 24, Secretary, Securities and Exchange interest by extending the benefits of 1991) (order approving File No. SR–PHLX–91–33, Commission, 450 Fifth Street, N.W., permitting AUTO–X for up to 20 contracts for all AUTO-X to a larger number of public Washington, D.C. 20549. Copies of the strike prices and expiration months); 29837 customer orders. (October 18, 1991), 56 FR 36496 (order approving submission, all subsequent File No. SR–PHLX–90–03, extending pilot through amendments, all written statements December 31, 1993); 32906 (September 15, 1993), 35601 (April 13, 1995), 60 FR 19616 (April 19, with respect to the proposed rule 58 FR 15168 (order approving File No. SR–PHLX– 1995) (order approving File No. SR–PHLX–95–18). change that are filed with the 92–38, permitting AUTO–X orders up to 25 contracts in all options); and 33405 (December 30, 4 See Securities Exchange Act Release No. 35591 Commission, and all written 1993), 59 FR 790 (order approving File No. SR– (April 11, 1995), 50 FR 19423 (April 18, 1995) communications relating to the PHLX–93–57, extending pilot through December 31, (order approving File No. SR–PHLX–95–07). proposed rule change between the 1994). 5 See Securities Exchange Act Release No. 29837, Commission and any person, other than 3 The Commission recently approved a PHLX supra note 2. those that may be withheld from the proposal to codify the use of AUTOM and AUTO– 6 See Securities Exchange Act Release No. 33894 X for index options. See Securities Exchange Act public in accordance with the (April 11, 1994), 59 FR 18429 (April 18, 1994) Release No. 34920 (October 31, 1994), 59 FR 5510 provisions of 5 U.S.C. 552, will be (order approving File No. SR–Amex–93–32, (November 7, 1994) (order approving File No. SR– available for inspection and copying at PHLX–94–40). In addition, the Commission has permitting the use of Auto-Ex on the American approved a PHLX proposal to codify the Exchange’s Stock Exchange, Inc., for up to 50 contracts for the Commission’s Public Reference practice of accepting certain orders for AUTOM and public customer market and marketable limit orders Section, 450 Fifth Street, N.W., AUTO–X. See Securities Exchange Act Release No. in Hong Kong Index options). Washington, D.C. Copies of such filing Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30133 will also be available for inspection and Suitability representation that it believes such copying at the principal office of the (3)(A) A member or person associated inclusion on Nasdaq or listing on an above-mentioned self-regulatory with a member shall not underwrite or exchange will occur within a reasonable organization. All submissions should participate in a public offering of a period of time following the formation refer to the file number in the caption direct participation program unless of the program. above and should be submitted by June standards of suitability have been * * * * * 28, 1995. established by the program for II. Self-Regulatory Organization’s For the Commission, by the Division of participants therein and such standards Statement of the Purpose of, and Market Regulation, pursuant to delegated are fully disclosed in the prospectus and Statutory Basis for, the Proposed Rule authority.7 are consistent with the provisions of Change Margaret H. McFarland, subparagraph (B) of this section. In its filing with the Commission, the Deputy Secretary. (B) In recommending to a participant NASD included statements concerning [FR Doc. 95–13896 Filed 6–6–95; 8:45 am] the purchase, sale or exchange of an the purpose of and basis for the interest in a direct participation BILLING CODE 8010±01±M proposed rule change and discussed any program, a member or person associated comments it received on the proposed with a member shall: rule change. The text of these statements [Release No. 34±35788; File No. SR±NASD± (i) have reasonable grounds to believe, may be examined at the places specified 95±21] on the basis of information obtained in Item IV below. The NASD has from the participant concerning his Self-Regulatory Organizations; Notice prepared summaries, set forth in investment objectives, other of Filing of Proposed Rule Change by Sections (A), (B), and (C) below, of the investments, financial situation and National Association of Securities most significant aspects of such needs, and any other information Dealers, Inc. Relating to Freely statements. Tradeable Direct Participation Program known by the member or associated Securities person, that: (A) Self-Regulatory Organization’s a. the participant is or will be in a Statement of the Purpose of, and May 31, 1995. financial position appropriate to enable Statutory Basis for, the Proposed Rule Pursuant to Section 19(b)(1) of the him to realize to a significant extent the Change Securities Exchange Act of 1934 benefits described in the prospectus, Article III, Section 34 of the Rules of (‘‘Act’’), 15 U.S.C. § 78s(b)(1), notice is including the tax benefits where they Fair Practice regulates participation by hereby given that on May 23, 1995, the are a significant aspect of the program; members and persons associated with a National Association of Securities b. the participant has a fair market net member in direct participation programs Dealers, Inc. (‘‘NASD’’ or ‘‘Association’’) worth sufficient to sustain the risks and limited partnership rollup filed with the Securities and Exchange inherent in the program, including loss transactions (‘‘DPP rule’’). The DPP rule Commission (‘‘SEC’’ or ‘‘Commission’’) of investment and lack of liquidity; and generally prohibits a member or a the proposed rule change as described c. the program is otherwise suitable person associated with a member from in Items I, II, and III below, which Items for the participant; and participating in a public distribution of have been prepared by the NASD.1 The (ii) maintain in the files of the a direct participation program or a Commission is publishing this notice to member documents disclosing the basis limited partnership rollup transaction solicit comments on the proposed rule upon which the determination of unless the distribution or transaction change from interested persons. suitability was reached as to each conforms to certain suitability and participant. disclosure requirements and standards I. Self-Regulatory Organization’s (C)[D] Notwithstanding the provisions of fairness and reasonableness. Statement of the Terms of Substance of of subparagraphs (A) and (B) hereof, no Since the adoption of the DPP rule in the Proposed Rule Change member shall execute any transaction in 1982,2 an increasing number of direct The NASD is herewith filing a a direct participation program in a participation programs, such as master proposed rule change to Article III, discretionary account without prior limited partnerships, have issued Section 34 of the Rules of Fair Practice. written approval of the transaction by partnership units, depositary receipts Below is the text of the proposed rule the customer. for such units, or assignee units of change. Proposed new language is (D)[C] Subparagraphs 3(A) and 3(B), limited partnership units that are freely italicized; proposed deletions are in and, only in situations where the tradeable in a manner generally brackets. member is not affiliated with the direct analogous to common stock and are participation program, Subparagraph quoted on Nasdaq and listed on Direct Participation Programs 3(C), shall not apply to: registered national stock exchanges. A Sec. 34. (i) a secondary public offering of or a direct participation program security is secondary market transaction in a unit, considered freely-tradeable under * * * * * depositary receipt, or other interest in a Section 34 if it is either (1) a secondary direct participation program for which public offering of or a secondary market 7 17 CFR 200.30–3(a)(12) (1994). 1 The proposal was originally filed with the quotations are displayed on Nasdaq or transaction in a direct participation Commission on May 10, 1995. The NASD which is listed on a registered national program security for which quotations subsequently submitted Amendment No. 1 to the securities exchange, or are displayed on Nasdaq or which is filing which amends Subsections (b)(3)(C) (i) and (ii) an initial public offering of a unit, listed on a registered national securities (ii) to Article III, Section 34 of the Rules of Fair exchange, or (2) a primary offering of a Practice, by replacing the phrase ‘‘the NASDAQ depositary receipt or other interest in a System’’ in Subsections (i) and (ii) and the word direct participation program for which direct participation program for which ‘‘NASDAQ’’ in Subsection (ii) with the word an application for inclusion on Nasdaq ‘‘Nasdaq.’’ Letter from Suzanne E. Rothwell, or listing on a registered national 2 The DPP rule was initially approved by the Associate General Counsel, NASD, to Mark P. securities exchange has been approved Commission as Appendix F to Article III, Section Barracca, Branch Chief, Over-the-Counter 34 on September 16, 1982 (Securities Exchange Act Regulation, Division of Market Regulation, SEC, by Nasdaq or such exchange and the Release No. 19054); 47 FR 42226 (September 24, dated May 22, 1995. applicant makes a good-faith 1982). 30134 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices an application for inclusion on Nasdaq direct participation program securities. (B) Self-Regulatory Organization’s or listing on a registered national Therefore, the NASD is proposing Statement on Burden on Competition securities exchange has been approved. reversing the order of current The NASD does not believe that the In order to address the increased Subsections (b)(3)(C) and (D) to Section proposed rule change will result in any transparency and liquidity associated 34 and to add a reference to burden on competition that is not with the nature of the secondary Subparagraph 3(C) in new Subparagraph necessary or appropriate in furtherance markets for freely tradeable direct 3(D) to exclude freely-tradeable direct of the purposes of the Act, as amended. participation program securities, the participation program securities from NASD amended the DPP rule to, among the prohibition on transactions in (C) Self-Regulatory Organization’s other things, exempt freely tradeable discretionary accounts without written Statement on Comments on the direct participation program securities approval. The exclusion for freely Proposed Rule Change Received From from the suitability requirements of tradeable direct participation program Members, Participants, or Others Subsections 34(b)(3) (A) and (B) of the securities in newly designated Written comments were neither 3 DPP rule. At the time, the NASD Subparagraph (3)(D) also restricts the solicited nor received. determined that since the disclosure availability of the exclusion to members requirements in the DPP rule were that are not affiliated with the direct III. Date of Effectiveness of the primarily designed for direct participation program. Where such an Proposed Rule Change and Timing for participation program securities that affiliation is present, the NASD believes Commission Action lacked liquidity and marketability, no that substantial conflict of interest and Within 35 days of the date of purpose was served by applying the regulatory concerns continue to exist publication of this notice in the Federal same criteria to freely tradeable direct and the exclusion should not be made Register or within such longer period (i) participation program securities. available. as the Commission may designate up to Freely tradeable direct participation The NASD believes that recognizing 90 days of such date if it finds such program securities, however, continue the use of discretionary authority for longer period to be appropriate and to be subject to the discretionary transactions in freely tradeable direct publishes its reasons for so finding or account prohibitions of Article III, participation program securities is (ii) as to which the self-regulatory Section 34. Currently, Subsection consistent with 1986 amendments to organization consents, the Commission 34(b)(3)(D) of the DPP rule states, in Section 34 exempting freely tradeable will: part, that ‘‘* * * no member shall participation program securities from A. By order approve such proposed execute any transaction in a direct the suitability and disclosure rule change, or participation program in a discretionary requirements of Section 34. Such B. institute proceedings to determine account without prior written approval suitability and disclosure requirements, whether the proposed rule change of the transaction by the customer.’’ The which are necessary where direct should be disapproved. provision applies to transactions in all participation program securities lack direct participation program securities, IV. Solicitation of Comments liquidity and marketability, were found whether freely tradeable or not. The to be unnecessary where a ready, liquid Interested persons are invited to NASD considers discretionary market exists. submit written data, views, and transactions in direct participation arguments concerning the foregoing. program securities which are illiquid Nothwithstanding the relief provided by the proposed rule from the Persons making written submissions and for which no ready market exists to should file six copies thereof with the be an improper use of discretionary prohibition in Article III, Section 34 against discretionary transactions in Secretary, Securities and Exchange power. Recently, the NASD considered Commission, 450 Fifth Street, N.W., whether Monthly Income Preferred freely tradeable direct participation program securities, such transactions Washington, D.C. 20549. Copies of the Securities (‘‘MIPS’’), a new financial submission, all subsequent instrument which is a freely tradeable would, however, remain subject to the general discretionary account amendments, all written statements direct participation program security, with respect to the proposed rule ought to be subject to the discretionary requirements contained in Article III, Section 15 of the Rules of Fair Practice. change that are filed with Commission, account restrictions in Article III, and all written communications relating 4 The NASD believes that the proposed Section 34. In its consideration, the to the proposed rule change between the NASD determined that the concerns rule change is consistent with the provisions of Section 15A(b)(6) of the Commission and any person, other than which attach to the use of discretionary those that may be withheld from the authority for illiquid, unmarketable Act,5 which require that the rules of the Association be designed to prevent public in accordance with the direct participation program securities provisions of 5 U.S.C. 552, will be are not present with freely tradeable fraudulent and manipulative acts and promote just and equitable principles of available for inspection and copying in the Commission’s Public Reference 3 trade, in that the proposed rule change See, Securities Exchange Act Release No. 23619 Room. Copies of such filing will also be (September 15, 1986); 51 FR 33968 (September 24, relieves members of their obligation to 1986). comply with prohibitions against available for inspection and copying at 4 MIPS are preferred securities issued by a parent discretionary transactions in direct the principal office of the NASD. All company’s subsidiary, which is structured as a participation program securities in submissions should refer to File No. limited partnership or limited liability company. SR–NASD–95–21 and should be The subsidiary issues MIPS to investors and invests situations which do not present the the proceeds in convertible subordinated regulatory concerns that the submitted by June 28, 1995. debentures of the parent. Interest on the debentures prohibitions were intended to address, For the Commission, by the Division of of the parent are paid to the subsidiary, which in and provides for regulatory consistency Market Regulation, pursuant to delegated turn pays the equivalent rate of interest to MIPS authority, 17 CFR 200.30–3(a)(12). holders in the form of dividends. MIPS are eligible in the treatment of discretionary to be listed on a national securities exchange or The transactions in freely tradeable Margaret H. McFarland, Nasdaq Stock Market and have flow-through tax securities. Deputy Secretary. consequences for investors, which means that they are considered direct participation programs and, [FR Doc. 95–13897 Filed 6–6–95; 8:45 am] therefore, subject to Section 34. 5 15 U.S.C. 78o–3. BILLING CODE 8010±01±M Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30135 [Release No. 34±35776; File No. SR±NYSE± that security. In accordance with this Floor brokers, 8 allied members,6 the 8 95±13] intent, the Exchange recently amended Floor broker Governors (who are part of the Policy to increase the number of the Allocation Panel by virtue of their Self-Regulatory Organizations; Notice Floor broker Governors 2 on the appointment as Governors), and the 4 of Filing of Proposed Rule Change by Allocation Committee from one to allied members serving on the the New York Stock Exchange, Inc. three.3 Formerly, only one Floor broker Exchange’s Market Performance Relating to Amendments to the Governor served as a member of the Committee.7 The Exchange would also Exchange's Allocation Policy and Allocation Committee. The Exchange amend the Policy to expand the Procedures believes that the Floor broker Governors Allocation Panel by appointing a May 30, 1995. on the Allocation Committee add a minimum of 5 Senior Floor Officials Pursuant to Section 19(b)(1) of the comprehensive knowledge of specialist each year. The Senior Floor Officials on Securities Exchange Act of 1934 performance and a broad perspective the Allocation Panel would constitute a (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is and expertise relating to the Exchange. separate category, distinguished from hereby given that on March 31, 1995, In conjunction with this amendment, the 28 Floor brokers. the New York Stock Exchange, Inc. the Exchange amended the Policy’s In the event that any of the Floor (‘‘NYSE’’ or ‘‘Exchange’’) filed with the quorum requirement to require at least broker Governors on the standing Securities and Exchange Commission two Floor broker Governors to be Allocation Committee were not able to (‘‘Commission’’ or ‘‘SEC’’) the proposed present at Allocation Committee attend an Allocation Committee rule change, and on May 17, 1995, filed meetings. Prior to the amendment, the meeting, or to participate in the Amendment No. 1 to the proposed rule Policy required only one such Governor allocation of a particular stock, the change,1 as described in Items I, II and to be present.4 These rule changes were Exchange would first seek to substitute III below, which Items have been implemented by the Exchange in for such Governor(s) with another Floor prepared by the self-regulatory October, 1994. broker Governor on the Allocation organization. The Commission is In order to avoid the appearance of a Panel. If no such Governor was publishing this notice to solicit conflict of interest on the part of an available, in order to maximize the comments on the proposed rule change Allocation Committee member, the seniority of the Allocation Committee from interested persons. Policy requires an Allocation Committee membership, a Senior Floor Official member whose firm has an investment broker on the Allocation Panel that is I. Self-Regulatory Organization’s banking/underwriting relationship with not a standing member of the Allocation Statement of the Terms of Substance of a listing company or is affiliated with a Committee would be sought as a the Proposed Rule Change specialist unit applicant, to abstain from substitute for the absent Governor(s). In The proposed rule change consists of deliberations with respect to that instances where no Senior Floor Official amendments to the Exchange’s particular stock. Since the broker was available from the Allocation Allocation Policy and Procedures which implementation of the amendments Panel, any Senior Floor Official broker would permit Floor broker Senior Floor discussed above, the Exchange has on the standing Allocation Committee Officials to replace Governors for found that the conflict of interest may substitute for the absent quorum purposes. exclusion may, at times, impede the Governor(s) for purposes of meeting the Governor quorum requirement. II. Self-Regulatory Organization’s Exchange’s efforts to maintain the In the event that no current Floor Statement of the Purpose of, and maximum presence of three Floor broker or allied member is available Statutory Basis for, the Proposed Rule broker Governors on the Allocation from the Allocation Panel, a former Change Committee. The Exchange believes that conflict of interest abstentions, among Allocation Committee chairman may In its filing with the Commission, the other matters, could lead to situations in substitute for a standing Allocation self-regulatory organization included which the quorum requirement for Floor Committee member who cannot attend statements concerning the purpose of broker Governors could not be met. In a meeting or participate in a particular and basis for the proposed rule change order to respond to this concern, the allocation decision. However, a former and discussed any comments it received Exchange is proposing to amend the Allocation Committee chairman may on the proposed rule change. The text Policy to permit Senior Floor Officials 5 not substitute for a Floor broker of these statements may be examined at to substitute for Floor broker Governors Governor for the purpose of meeting the the places specified in Item IV below. on the Allocation Committee for Floor broker Governor quorum The self-regulatory organization has purposes of satisfying quorum requirement unless such former prepared summaries, set forth in requirements. Allocation Committee chairman is a Sections A, B, and C below, of the most The Allocation Committee Senior Floor Official. significant aspects of such statements. membership is drawn from the The Exchange is also amending the A. Self-Regulatory Organization’s Allocation Panel, which consists of 28 ‘‘Term of Service’’ provision for Panel Statement of the Purpose of, and members to include a provision for Statutory Basis for, the Proposed Rule 2 A Floor broker Governor is an individual, Senior Floor Officials. Senior Floor Change designated as such by the Chairman of the Exchange’s Board of Directors, who is empowered 6 An allied member is a general partner, principal 1. Purpose to perform any duty, make any decision or take any executive officer or employee who controls a action assigned to or required of a Floor Director member firm or member organization. See New The intent of the Exchange’s as prescribed by the rules of the Exchange’s Board York Stock Exchange, Inc., Constitution, Art. 1, Sec. Allocation Policy and Procedures of Directors. 3(c). (‘‘Policy’’) is to ensure that each security 3 This committee determines which specialist 7 The Allocation Panel comprises the pool of is allocated in the fairest manner unit will specialize in a particular security. See individuals from which the Allocation Committee Securities Exchange Act Release No. 34626 is formed. The Allocation Panel members are possible to the best specialist unit for (September 1, 1994), 59 FR 46457. selected through an annual appointment process 4 See Securities Exchange Act Release No. 34626 with input from the membership. Panel members 1 See Letter from James E. Buck, Senior Vice (September 1, 1994), 59 FR 46457. are appointed to serve a one-year term; Floor broker President and Secretary, NYSE, to Elisa Metzger, 5 A Senior Floor Official is a former Governor or Governors, however, remain on the Allocation Staff Attorney, SEC dated May 16, 1995. a former Floor Director. Panel for as long as they are Floor broker Governors. 30136 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices Officials are subject to annual change that are filed with the of 25 option contracts or less are eligible reappointment, but are not subject to the Commission, and all written for automatic execution through AUTO– two committee term restriction that communications relating to the X, the automatic execution feature of floor brokers and allied members are proposed rule change between the AUTOM. The proposal does not affect subject to, and are not limited to a Commission and any person, other than AUTO–X order size eligibility. maximum of six consecutive one-year those that may be withheld from the The text of the proposed rule change terms. public in accordance with the is available at the Office of the provisions of 5 U.S.C. 552, will be Secretary, PHLX, and at the 2. Statutory Basis available for inspection and copying at Commission. The basis under the Act for the the Commission’s Public Reference II. Self-Regulatory Organization’s proposed rule change is the requirement Section, 450 Fifth Street, NW., Statement of the Purpose of, and under Section 6(b)(5) that an Exchange Washington, DC 20549. Copies of such Statutory Basis for, the Proposed Rule have rules that are designed to promote filing will also be available for Change just and equitable principles of trade, to inspection and copying at the principal remove impediments to, and perfect the office of the NYSE. All submissions In its filing with the Commission, the mechanism of a free and open market should refer to File No. SR–NYSE–95– self-regulatory organization included and, in general, to protect investors and 13 and should be submitted by June 28, statements concerning the purpose of the public interest. The proposed rule 1995. and basis for the proposed rule change changes are consistent with these and discussed any comments it received For the Commission, by the Division of objectives in that they enable the Market Regulation, pursuant to delegated on the proposed rule change. The text Exchange to further enhance the process authority. of these statements may be examined at by which stocks are allocated. Margaret H. McFarland, the places specified in Item IV below. The self-regulatory organization has B. Self-Regulatory Organization’s Deputy Secretary. prepared summaries, set forth in Statement on Burden on Competition [FR Doc. 95–13894 Filed 6–6–95; 8:45 am] sections (A), (B), and (C) below, of the The Exchange does not believe that BILLING CODE 8010±01±M most significant aspects of such the proposed rule change will impose statements. any burden on competition that is not [Release No. 34±35782; File No. SR±PHLX± (A) Self-Regulatory Organization’s necessary or appropriate in furtherance 95±30] of the purposes of the Act. Statement of the Purpose of, and Self-Regulatory Organizations; Notice Statutory Basis for, the Proposed Rule C. Self-Regulatory Organization’s of Filing and Immediate Effectiveness Change Statement on Comments on the of Proposed Rule Change by the The purpose of the proposal is to Proposed Rule Change Received from Philadelphia Stock Exchange, Inc., increase the maximum eligible order Members, Participants or Others Relating to an Increase in the size for the delivery of equity and index The Exchange has neither solicited Maximum Size of Optioned Orders option orders through AUTOM from 100 nor received written comments on the Eligible for Delivery Through the to 500 contracts. proposed rule change. Automated Options Market System AUTOM, which has operated on a pilot basis since 1988 and was not III. Date of Effectiveness of the May 30, 1995. Proposed Rule Change and Timing for recently extended through December 31, Pursuant to Section 19(b)(1) of the 1995,1 is an on-line system that allows Commission Action Securities Exchange Act of 1934 Within 35 days of the publication of (‘‘Act’’), 15 U.S.C. 78s(b)(1), notice is 1 See Securities Exchange Act Release No. 35183 this notice in the Federal Register or hereby given that on May 23, 1995, the (December 30, 1994), 60 FR 2420 (January 9, 1995) within such other period (i) as the Philadelphia Stock Exchange, Inc. (order approving File No. SR–PHLX–94–41). See (‘‘PHLX’’ or ‘‘Exchange’’) filed with the also Securities Exchange Act Release Nos. 25540 Commission may designate up to 90 (March 31, 1988), 53 FR 11390 (order approving days of such date if it finds such longer Securities and Exchange Commission AUTOM on a pilot basis); 25868 (June 30, 1988), period to be appropriate and publishes (‘‘SEC’’ or ‘‘Commission’’) the proposed 53 FR 25563 (order approving File No. SR–PHLX– its reasons for so finding or (ii) as to rule change as described in Items I, II 88–22, extending pilot through December 31, 1988); and III below, which Items have been 26354 (December 13, 1988), 53 FR 51185 (order which the self-regulatory organization approving File No. SR–PHLX–88–33, extending consents, the Commission will: prepared by the self-regulatory pilot program through June 30, 1989); 26522 (A) By order approve the proposed organization. The Commission is (February 3, 1989), 54 FR 6465 (order approving rule change, or publishing this notice to solicit File No. SR–PHLX–89–1, extending pilot through (B) Institute proceedings to determine comments on the proposed rule change December 31, 1989); 27599 (January 9, 1990), 55 FR 1751 (order approving File No. SR–PHLX–89–03, whether the proposed rule change from interested persons. extending pilot through June 30, 1990); 28625 (July should be disapproved. 26, 1990), 55 FR 31274 (order approving File No. I. Self-Regulatory Organization’s SR–PHLX–90–16, extending pilot through IV. Solicitation of Comments Statement of the Terms of Substance of December 31, 1990); 28978 (March 15, 1991), 56 FR the Proposed Rule Change 12050 (order approving File No. SR–PHLX–90–34, Interested persons are invited to extending pilot through December 31, 1991); 29662 submit written data, views and Currently, orders of up to 100 option (September 9, 1991), 56 FR 46816 (order approving arguments concerning the foregoing. contracts are eligible for delivery File No. SR–PHLX–91–31, permitting AUTO–X Persons making written submissions through the Automated Options Market orders up to 20 contracts in Duracell options only); 29782 (October 3, 1991), 56 FR 55146 (order should file six copies thereof with the (‘‘AUTOM’’) system, the PHLX’s approving File No. SR–PHLX–91–33, permitting Secretary, Securities and Exchange electronic order routing and delivery AUTO–X for all strike prices and expiration Commission, 450 Fifth Street, NW., system for equity and index options. months); 29837 (October 18, 1991), 56 FR 36496 Washington, DC, 20549. Copies of the The PHLX proposes to amend its rules (order approving File No. SR–PHLX–90–03, extending pilot through December 31, 1993); 32906 submission, all subsequent to allow a maximum of 500 contracts to (September 15, 1993), 58 FR 15168 (order approving amendments, all written statements be delivered through AUTOM. File No. SR–PHLX–92–38, permitting AUTO–X with respect to the proposed rule Currently, only public customer orders orders up to 25 contracts in all options); and 33405 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30137 electronic delivery of options orders investors and the public interest by public in accordance with the from member firms directly to the extending the benefits of AUTOM, provisions of 5 U.S.C. 552, will be appropriate specialist on the Exchange’s including prompt and efficient order available for inspection and copying at trading floor. Currently, orders for up to handling, to orders for up to 500 the Commission’s Public Reference 100 options contracts are eligible for contracts. Section, 450 Fifth Street, N.W., AUTOM and public customer orders for Washington, D.C. Copies of such filing (B) Self-Regulatory Organization’s up to 25 contracts are eligible for will also be available for inspection and Statement on Burden on Competition AUTO–X, the automatic execution copying at the principal office of the feature of AUTOM.2 AUTO–X orders are The PHLX does not believe that the above-mentioned self-regulatory executed automatically at the proposed rule change will impose any organization. All submissions should disseminated quotation price on the inappropriate burden on competition. refer to the file number in the caption Exchange and reported to the (C) Self-Regulatory Organization’s above and should be submitted by June originating firm. Orders that are not Statement on Comments on the 28, 1995. eligible for AUTO–X are handled Proposed Rule Change Received from For the Commission, by the Division of manually by the specialist. The current Members, Participants or Others Market Regulation, pursuant to delegated proposal does not impact AUTO–X authority.4 No written comments were either order size eligibility. Margaret H. McFarland, solicited or received. The Exchange proposes to increase Deputy Secretary. the maximum eligible size of AUTOM III. Date of Effectiveness of the [FR Doc. 95–13895 Filed 6–6–95; 8:45 am] orders from 100 to 500 contracts. This Proposed Rule Change and Timing for BILLING CODE 8010±01±M change is intended to extend the Commission Action benefits of AUTOM to additional users. Because the foregoing rule change: (1) The Exchange notes that the maximum [Rel. No. IC±21104; No. 812±9200] Does not significantly affect the AUTOM order size has remained the protection of investors or the public same since 1990. In light of the PHLX’s The Guardian Insurance & Annuity interest; (2) does not impose any experience with AUTOM over the past Company, Inc., et al. significant burden on competition; and seven years, including five years during (3) does not become operative for 30 May 31, 1995. which the maximum AUTOM order size days after May 23, 1995, the date on AGENCY: Securities and Exchange has been 100 contracts, the Exchange which it was filed, and the Exchange Commission (‘‘SEC’’ or ‘‘Commission’’). believes that it is appropriate, at this provided the Commission with written ACTION: Notice of Application for an time, to increase the maximum size of notice of its intent to file the proposed Order under the Investment Company the option orders eligible for routing rule change at least five days prior to the Act of 1940 (‘‘1940 Act’’). and delivery through AUTOM to 500 filing date, it has become effective contracts. The PHLX notes that the most APPLICANTS: pursuant to Section 19(b)(3)(A) of the The Guardian Insurance & recent change, in 1990, increased the Act and Rule 19b–4(e)(6) thereunder. In Annuity Company, Inc. (‘‘Guardian’’), eligible order size for AUTOM from 10 particular, the Commission believes that The Guardian Separate Account K to 100 contracts.3 the proposal does not significantly affect (‘‘Separate Account’’) and Guardian The PHLX states that the AUTOM Investor Services Corporation system has sufficient capacity to operate the protection of investors or the public interest and does not impose any (‘‘Guardian Services’’). with a maximum order size of 500 RELEVANT 1940 ACT SECTIONS Order contracts, such that AUTOM and significant burden on competition. At any time within 60 days of the requested under Section 6(c) granting AUTO–X functioning would not be filing of such proposed rule change, the exemptions from the provisions of adversely affected by the proposal. Commission may summarily abrogate Sections 2(a)(32), 2(a)(35), 22(c), Accordingly, the PHLX believes that such rule change if it appears to the 26(a)(1), 26(a)(2), 27(a)(1), 27(c)(1), the proposal is consistent with Section Commission that such action is 27(c)(2), 27(d), and 27(e) of the 1940 6(b) of the Act, in general, and, in necessary or appropriate in the public Act, and paragraphs (b)(1), (b)(12), particular, with Section 6(b)(5), in that interest, for the protection of investors, (b)(13)(i), (b)(13)(iii), (b)(13)(iv), it is designed to promote just and or otherwise in furtherance of the (b)(13)(v), (b)(13)(vii), (c)(1), (c)(4) of equitable principles of trade and to purposes of the Act. Rule 6e–2, and Rules 6e–3(T)(c)(4)(v), prevent fraudulent and manipulative 22c–1 and 27e–1 thereunder. acts and practices, as well as to protect IV. Solicitation of Comments SUMMARY OF APPLICATION: Applicants Interested persons are invited to request an order that would permit them (December 30, 1993), 59 FR 790 (order approving File No. SR–PHLX–93–57, extending pilot through submit written data, views and to offer and sell certain variable whole 31, 1994). arguments concerning the foregoing. life insurance contracts with modified 2 The Commission recently approved a PHLX Persons making written submissions scheduled premiums (‘‘Contracts’’) that proposal to codify the use of AUTOM and AUTO– should file six copies thereof with the provide for: (1) A death benefit that may X for index options. See Securities Exchange Act Secretary, Securities and Exchange or may not vary based on investment Release No. 34920 (October 31, 1994), 59 FR 5510 (November 7, 1994) (order approving File No. SR– Commission, 450 Fifth Street, N.W., experience; (2) a sales charge deducted PHLX–94–40). In addition, the Commission has Washington, D.C. 20549. Copies of the from premium payments and as a approved a PHLX proposal to codify the Exchange’s submission, all subsequent contingent deferred sales charge; (3) a practice of accepting certain orders for AUTOM and amendments, all written statements contingent deferred administrative AUTO–X. See Securities Exchange Act Release No. 35601 (April 13, 1995), 60 FR 19616 (April 19, with respect to the proposed rule charge; (4) deduction from Account 1995) (order approving File No. SR–PHLX–95–18). change that are filed with the Value for cost of insurance charges, AUTO–X was approved as part of the AUTOM pilot Commission, and all written guaranteed insurance amount charges, program in 1991. See Securities Exchange Act communications relating to the substandard mortality risks and Release No. 28978, supra note 1. 3 See Securities Exchange Act Release No. 28516 proposed rule change between the incidental insurance benefits, including (October 3, 1990), 55 FR 41408 (October 11, 1990) Commission and any person, other than (order approving File No. SR–PHLX–90–18). those that may be withheld from the 4 17 CFR 200.30–3(a)(12) (1994). 30138 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices a Premium Skip Option; (5) values and Insurance Products (Division of Premium’’) 3 is used to purchase base charges based on the 1980 Investment Management). Contract coverage and is reduced by Commissioners’ Standard Ordinary SUPPLEMENTARY INFORMATION: The certain Premium Charges, discussed Mortality Tables (‘‘1980 CSO Tables’’); following is a summary of the below.4 (6) the holding of underlying fund application; the complete application is Each unscheduled Premium Payment shares by the Separate Account without available for a fee from the also is subject to deduction of Premium the use of a trustee under an open Commission’s Public Reference Branch. Charges, including the remaining 9.5% account arrangement and without trust of Premium Assessment otherwise indenture; and (7) a waiver of notice of Applicants’ Representations payable from Premium Payments if the refund and withdrawal rights. 1. Guardian is a stock life insurance Premium Skip Option is in effect. Thus, Applicants also request exemptive relief company and a wholly-owned Premium Assessments usually are to deduct a charge from premium subsidiary of The Guardian Life deducted from Premium Payments payments received under the Contracts, Insurance Company of America. before sales load and other charges and from premiums received under Guardian is authorized to conduct a life against Premiums are imposed. certain single premium, scheduled insurance business in all 50 States and Premium Assessments deducted from premium and flexible premium variable the District of Columbia. Account Value (under the Premium Skip Option), in effect, are deductions life insurance contracts (‘‘Other 2. The Separate Account is registered from amounts previously subject to Contracts’’) to be issued by Guardian as a unit investment trust (‘‘UIT) under Premium Charges (which are equal to a through the Separate Account or any the 1940 Act and interests in the total of 9.5% of Premiums until the other separate account established by Contracts are registered under the cumulative total of Basic Scheduled Guardian (‘‘Future Accounts’’), to Securities Act of 1933 (‘‘1933 Act’’). Premiums and unscheduled Premium compensate Guardian for its increased Future Accounts will be registered Payments is an amount equal to twelve federal tax burden resulting from the under the 1940 Act as UITs. The 1 Basic Scheduled Premiums). receipt of such premiums. Separate Account and the Future Accordingly, a discounting of Premium FILING DATE: The application was filed Accounts will be used to support the Assessments deducted from Account on August 29, 1994 and amended on Contracts or the Other Contracts. May 4, 1995. Applicants have Value reflects the fact that the The Separate Account currently deductions are being made from post- represented that the application will be consists of six investment divisions amended during the notice period to premium charge amounts. Net (‘‘Investment Divisions’’), each investing Premiums are credited to Account Value reflect certain representations made in a corresponding fund registered herein. and allocated to the Investment under the 1940 Act as a diversified Divisions, or to the Fix-Rate Option, as HEARING OR NOTIFICATION OF HEARING: An open-end management company specified by the Contract owner. order granting the Application will be (‘‘Fund’’ or collectively, ‘‘Funds’’). The 5. Two Death Benefit Options are issued unless the Commission orders a Funds serve as underlying funding available: (1) ‘‘Option 1 Death Benefit,’’ hearing. Interested persons may request vehicles for the Contracts. Each Fund is equal to the Face Amount of a Contract a hearing by writing to the managed by a registered investment until the Contract Anniversary nearest Commission’s Secretary and serving adviser. Additional Investment the insured’s 100th birthday; and (2) Applicants with a copy of the request, Divisions may be established in the ‘‘Option 2 Death Benefit,’’ equal to the personally or by mail. Hearing requests future and may invest in the Funds or should be received by the Commission in other underlying investment vehicles. 3 The Basic Scheduled Premium initially is by 5:30 p.m. on June 26, 1995, and 3. Guardian Services, the principal calculated at the issuance of the Contract and should be accompanied by proof of underwriter for the Contracts, is a thereafter on each subsequent date that a Contract service on Applicants in the form of an premium is due until the later of: (a) the Contract registered broker-dealer under the Anniversary nearest the insured’s 70th birthday; or affidavit or, for lawyers, a certificate of Securities Exchange Act of 1934 and a (b) the 10th Contract Anniversary (‘‘Guaranteed service. Hearing requests should state member of the National Association of Premium Period’’). After the Guaranteed Premium the nature of the requestor’s interest, the Securities Dealers, Inc. Period, the Basic Scheduled Premium will be reason for the request, and the issues reviewed on each ‘‘Contract Review Date’’ (the 4. Under the Contracts, premiums monthly date prior to each Contract anniversary). If contested. Persons may request may be paid on a scheduled or an on that date the Account Value is: (a) less than the notification of a hearing by writing to unscheduled basis (collectively, ‘‘Benchmark Value,’’ then the Basic Scheduled the Secretary of the Commission. ‘‘Premium Payments’’), subject to Premium will be increased to no more than the ‘‘maximum’’ amount set forth in the Contract; or (b) ADDRESSES: Secretary, Securities and certain exceptions and conditions. Each higher than the Benchmark Value, then the Basic Exchange Commission, 450 5th Street, Premium Payment is subject to Scheduled Premium could be reduced to no less N.W., Washington, D.C. 20549. ‘‘Premium Assessments’’ which are paid than the Basic Scheduled Premium payable during Applicants: Richard T. Potter, Esq., The in connection with a Contract issued on the Guaranteed Premium Period. The Benchmark Value approximately equals the Guardian Insurance & Annuity a substandard basis and for Account Value needed on a Contract Anniversary Company, Inc., 201 Park Avenue, South, supplemental insurance benefits for the Contract to endow at age 100 for the Face New York, New York 10003. provided by rider or endorsement. If, Amount, assuming (a) all Basic Scheduled Premiums are paid when due and do not increase FOR FURTHER INFORMATION CONTACT: however, the ‘‘Premium Skip Option’’ is elected,2 90.5% of Premium Assessment after the Guaranteed Premium Period due to re- Yvonne M. Hunold, Assistant Special determination on a Review Date; (b) no Counsel, or Wendy Friedlander, Deputy otherwise payable from Premium unscheduled payments, partial withdrawals, Chief, at (202) 942–0670, Office of Payments is deducted from Account reductions in Face Amount, or loans have been or Value. The remaining Premium will be made; (c) a level net annual rate of return Payment (‘‘Basic Scheduled on Account Value of 4%; and (d) deduction on each 1 Applicants represent that the application will be Monthly Date of the maximum Contract Charge, amended during the notice period to delete Future Administrative Charge, Guaranteed Insurance Accounts as applicants and to request that 2 A Premium Skip Option permits the Contract Amount and Cost of Insurance Charges. exemptive relief to deduct such a charge be owner, after the first Contract Year, to skip annual 4 The portion of a Premium Payment that consists extended to Future Accounts in connection with Premium Payments without the Contract lapsing, of Premium Assessments is not subject to Premium the offering of Other Contracts. subject to certain conditions. Charges. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30139 Face Amount of a Contract plus the (1) Sales Charge: A Premium Sales the first 12 Contract Years upon excess of Account Value on the date of Charge equal to 6.0% of all Premium withdrawal, surrender, reduction in death over a Contract’s ‘‘Benchmark Payments until the cumulative total of Face Amount, or lapse. Value’’ for the applicable Contract Year, all such Payments is equal to twelve (A) CDSC: 5 For an insured age 78 or adjusted to the date of death until the Basic Scheduled Premiums; thereafter, less, the lesser of (i) 36% of the annual Anniversary nearest the insured’s 100th the charge will be equal to 3.0% of all Basic Scheduled Premium payable for birthday. Under either Option, Death such payments. the first Contract Year, less the sum of Benefits are guaranteed not to be less (2) Premium Tax Charge: A State 3% of all Basic Scheduled Premiums then a Contract’s then-current Face Premium Tax Charge of 2.5% which is and unscheduled Premium Payments Amount as long as Premium Payments an approximate average of the rates actually paid under the Contract up to are made, or excused, and there is no Guardian expects to pay in all states the date that the Surrender Charge is outstanding Contract Debt. If, however, over the lifetime of the insureds covered incurred and any deferred sales charges a greater Death Benefit would be by the Contracts. Guardian reserves the deducted for prior Face Amount provided under either one of two right to increase if its premium taxes reductions; or (ii) a percentage of the ‘‘Alternative Death Benefits,’’ (a) the increase due to a change in state law. then payable annual Basic Scheduled minimum death benefit required under (3) Federal Premium Tax Burden Premium specified in the following Section 7702 of the Code, or (b) the Charge: A charge of 1.0% to compensate chart for the Contract Year during which variable insurance amount, then the Guardian for an increase in its federal the Surrender Charge is applied: greater Alternative Death Benefit will be income tax burden resulting from the paid. Thus, the Death Benefit under application of Section 848 of the Contract year 6 Percentage either Option 1 or Option 2 varies with Internal Revenue Code of 1986 investment experience when the (‘‘Code’’), as amended by the Omnibus 1 ...... 36 2 ...... 33 Account Value is sufficiently large that: Budget Reconciliation Act of 1990 (‘‘OBRA’’). 3 ...... 30 (a) the Death Benefit is increased in 4 ...... 27 order for a Contract to qualify as life (4) Processing Charge: Guardian reserves the right to impose a maximum 5 ...... 24 insurance for federal tax law purposes; 6 ...... 21 or if greater, (b) the Death Benefit is charge of $2.00 from each unscheduled 7 ...... 18 increased to the variable insurance Premium Payment received for 8 ...... 15 amount. This may occur because of processing costs, including 9 ...... 12 favorable investment experience, recordkeeping. Guardian does not 10 ...... 9 unscheduled Premium Payments, expect a profit from this fee, if imposed. 11 ...... 6 b. Transaction Charges: The following 12 ...... 3 imposition of lower than guaranteed 13+ ...... 0 charges, or a combination of these charges are deducted proportionately factors. from Account Value attributable to the Investment Divisions until the Account 6. Various fees and expenses are value is depleted, and then from the (B) CDAC: The CDAC compensates deducted from Premium Payments Fixed-Rate Option: Guardian for certain administrative under the Contracts: (1) Surrender Charge: A Contingent expenses as follows (per $1,000 Base a. Premium Charges: The following Deferred Sales Charge (‘‘CDSC’’) and a Contract Face Amount), subject to charges are deducted from each Contingent Deferred Administrative certain decreases associated with a Premium Payment: Charge (‘‘CDAC’’) are deducted during reduction in Face Amount: ADMINISTRATIVE SURRENDER CHARGE Year (ages) 1 2 3 4 5 6 7 8 9 10 11 12 13+ 00±27 ...... 2.4 2.20 2.0 1.80 1.6 1.40 1.2 1.00 0.8 0.60 0.4 0.20 .00 28±29 ...... 3.0 2.75 2.5 2.25 2.0 1.75 1.5 1.25 1.0 0.75 0.5 0.25 .00 30±31 ...... 3.6 3.30 3.0 2.70 2.4 2.10 1.8 1.50 1.2 0.90 0.6 0.30 .00 32±33 ...... 4.2 3.85 3.5 3.15 2.8 2.45 2.1 1.75 1.4 1.05 0.7 0.35 .00 34±80 ...... 4.8 14.40 4.0 3.60 3.2 2.80 2.4 2.00 1.6 1.20 0.8 0.40 .00 (2) Partial Withdrawal Administration with dollar cost averaging feature or later, on the date the Premium Skip Charge: The lesser of $25 or 2% of the loans. Guardian does not expect to Option is effected. The remaining 9.5% amount withdrawn for certain profit from this charge. is deducted as part of the Premium administrative costs. Guardian does not (4) Premium Skip Option Charge: An Charges for any unscheduled Premium expect to profit from this charge. amount equal to 90.5% of any Premium Payment. (3) Transfer Charge: Guardian Assessment that otherwise would be c. Monthly Deductions: The following reserves the right to deduct $25 for each deducted from an annual Premium will charges are deducted monthly transfer in excess of four transfers be deducted on each Contract proportionately from Account Value during a Contract Year. No transfer Anniversary on which the ‘‘skipped’’ attributable to each Investment Division charge will be imposed in connection Premium otherwise would be due or, if and the Fixed-Rate Option, ending on 5 The total sales charge (Premium Sales Charge 6 In order to preclude the possibility that equal to an annual Basic Scheduled Premium; plus and CDSC) is subject to a maximum of 9% of Basic Guardian would be required to refund any sales 4% of payments made during the second Contract Scheduled Premiums paid under the Contract over load, the Contracts provide that the CDSC imposed Year up to an amount equal to an annual Basic the shorter of 20 years or the insured’s anticipated during the first two Contract Years will be no Scheduled Premium; plus 3% of all unscheduled greater than the sum of: 24% of payments made life expectancy. payments made during the first two Contract Years. during the first Contract Year up to an amount 30140 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices the Contract Anniversary nearest the Account or the Contracts. Guardian conditions as a separate account insured’s 100th birthday: reserves the right to impose such claiming exemption under Rule 6e–2. (1) Contract Charge and charges if the income tax treatment of Rule 6e–2(c)(1) defines a ‘‘variable life Administration Charge: The Contract variable life insurance changes, or if insurance contract’’ to include only life charge is equal to $10 per month during there is a change in Guardian’s tax insurance contracts that provide both a Contract Years 1 through 3, and $4 per status. death benefit and a cash surrender value which vary to reflect the investment month thereafter (guaranteed not to e. Fund Expenses: Charges for experience of the separate account, and exceed $8 per month). The investment advisory and other expenses that guarantee that the death benefit will Administrative Charge is equal to $0.02 incurred by the Funds are deducted to $0.04 (increasing with issue age) per not be less than an initial dollar amount from assets of the relevant Fund and are stated in a contract. The required $1,000 of Face Amount during the first indirectly borne by Contract owners. 12 Contract Years, and $0.015 per guaranteed minimum death benefit need $1,000 of Face Amount thereafter, for Applicants’ Legal Analysis be provided only so long as payments underwriting, issuing and maintaining are duly made in accordance with the the Contract. Guardian does not expect Section 6(c) authorizes the contract’s terms. to profit from these charges.7 Commission, by order and upon 2. Applicants submit that under the (2) Guaranteed Insurance Amount application, to exempt any person, Contracts the Death Benefit varies to Charge: $0.01 per $1,000 of Face security, or transaction, or class of reflect investment experience within the Amount to compensate Guardian for the persons, securities, or transactions, from meaning of Rule 6e–2(c)(1). Applicants risk it assumes by guaranteeing that a any provisions of the 1940 Act. The concede, however, that the Death Contract will remain in force if all Commission grants relief under Section Benefit is not precisely the type of premiums have been paid when due 6(c) to the extent an exemption is variable death benefit contemplated and no loans have been taken, necessary or appropriate in the public when Rule 6e–2 was adopted, and that regardless of the investment experience interest and consistent with the the Contracts also contain other of the Investment Division; and protection of investors and the purposes provisions that are not specifically (3) Cost of Insurance Charge: A fairly intended by the policy and addressed in Rule 6e–2. charge, based on the 1980 CSO Tables provisions of the 1940 Act. For the 3. Applicants believe that Option 2 (discounted at the monthly equivalent reasons stated below, Applicants assert Death Benefit falls within the of 4% per year), is deducted and that the requested exemptions satisfy requirement that it ‘‘vary to reflect the calculated by multiplying the net the standards of Section 6(c). investment experience of the separate amount at risk on a Monthly Date account,’’ although it varies only when (amount by which the Death Benefit on A. Request for Exemptions Relating to Account Value exceeds Benchmark the first day of the Contract month Definition of ‘‘Variable Life Insurance Value. Applicants submit that this exceeds the Account Value on the same Contract’’ situation is analogous to more day, after monthly deductions for conventional scheduled premium 1. Applicants note that Rule 6c–3 variable life insurance contracts where contract and administration charges and under the 1940 Act provides that a the Guaranteed Insurance Amount death benefits are increased when separate account that meets the investment experience exceeds an charge have been processed) by the requirements of Rule 6e–2(a) 8 and applicable monthly cost of insurance assumed investment rate. Applicants registers as an investment company assert that Rule 6e–2(c)(1) clearly rate, divided by $1,000. under the 1940 Act also is exempt from d. Separate Account Charges: Each contemplates that a death benefit would the 1940 Act provisions set forth in Rule vary only if it exceeds a guaranteed Investment Division currently is 6e–2(b), except for Sections 7 and 8(a), assessed a charge for mortality and minimum death benefit. under the same terms and conditions as 4. Applicants state, however, that expense risks that Guardian assumes, at a separate account claiming exemption Option 1 will fail to satisfy this a current effective annual rate of .60% directly under Rule 6e–2.9 Applicants requirement if the Death Benefit has not of the value of its assets. Guardian state that the Separate Account satisfies been otherwise increased to provide the reserves the right to increase the the conditions of Rule 6e–2(a) and, minimum death benefit required by mortality and expense risk charge up to therefore, is entitled to rely on Rule 6e– Section 7702 of the Code of the variable a maximum effective annual rate of 3. Accordingly, the Separate Account is insurance amount. .90%, subject to further Commission exempt from the provisions of the 1940 5. Applicants request exemptions authorization. Guardian assumes a Act specified in paragraph (b) of Rule from the definition of ‘‘variable life mortality risk under the Contracts that 6e–2, except for Sections 7 and 8(a) of insurance contract’’ in Rule 6e–2(c)(1) insured may live for shorter periods of the 1940 Act, under the same terms and and from all Sections of the 1940 Act time than estimated, and assumes an and rules thereunder specified in Rule expense risk that its actual costs of 8 Rule 6e–2(a) states that ‘‘a separate account 6e–2(b) (other than Sections 7 and 8(a)), issuing and administering the Contracts ** * shall, except for the exemptions provided in under the same terms and conditions may be more than it estimated. No paragraph (b) [of Rule 6e–2], be subject to all provisions of [the 19040 Act] * * * as though such applicable to a separate account that charge currently is deducted from satisfies the conditions set forth in Rule Separate Account assets for income separate account were a registered investment company issuing periodic payment plan 6e–2(a), and to the extent necessary to taxes attributable to the Separate certificates,’’ provided that the conditions set forth permit the offer and sale of the in Rule 6e–2(a) are met. Thus, Rule 6e–2(a) Contracts in reliance on Rule 6e–2, 7 contemplates that a variable life separate account Applicants represent that each of these fees is 10 reasonable, and in an amount that does not exceed relying on Rule 6e–2 will not be registered under except as otherwise set forth herein. the expenses to which such charge relates that are the 1940 Act. currently anticipated to be incurred over the 9 Accordingly, all registered separate accounts 10 Both Death Benefit Options provide for a lifetime of the Contracts. The maximum amount of issuing variable life insurance products do so in guaranteed minimum death benefit at least equal to each of these fees or charges is guaranteed not to reliance on Rule 6c–3, and not directly in reliance the Contract’s initial Face Amount, as required by increase during the term of the Contract. Guardian on Rules 6e–2 or 6e–3(T), as applicable. Applicants Rule 6e–2(c)(1). The Contracts also permit a does not anticipate realizing a profit from these represent that the application will be amended reduction in Face Amount (including reductions charges. during the notice period to reflect these statements. through partial withdrawals). Certain provisions of Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30141 6. Applicants submit that the Account Value to be less than it to the extent necessary to permit part of definition of ‘‘variable life insurance otherwise would be. the Contracts’ sales charge to be contract’’ in Rule 6e–2(c)(1) was drafted 9. Applicants also submit that the deducted from premium payments and at a time when all the variable life considerations that led the Commission part as a CDSC upon surrender, Face insurance contracts then contemplated to adopt Rules 6c–3 and 6e–2 apply Amount reduction (including upon clearly met this definition, and that the equally to the Separate Account and the partial withdrawal) or lapse of a considerations that led the Commission Contracts, and that the exemptions Contract. to grant the exemptions in Rule 6e–2 provided by these rules would be In addition, Applicants argue that did not depend in any material way granted to the Separate Account and to Rule 6e–2(c)(4) can be construed to upon the fact that the death benefit, as the other Applicants on the terms allow the imposition of a sales charge well as cash values, varied with specified in those rules, except to the on other than premiums because the investment experience. Nor did such extent that further exemption from those definition of ‘‘sales load’’ in the Rule considerations depend on whether a terms is specifically requested herein. does not reflect the actual methodology scheduled premium contract also B. Request for Exemptions Relating to of administering variable life insurance provided for substantial premium Sales and Administrative Charges contracts, referring in subparagraphs (i) payment flexibility and other features so and (ii), for example, to other amounts long as the scheduled premiums, if paid 1. Applicants request exemptions that are not deducted from payments. when due, provided for a minimum from Sections 2(a)(32), 2(a)(35), 22(c), To this extent, Applicants assert that the death benefit guaranteed to at least 26(a)(2), 27(a)(1), 27(c)(2), 27(d) and applicability of the definition need not equal the initial face amount. Rules 6e–2(b)(1), (b)(12), (b)(13)(i), be limited to any particular form of sales 7. Applicants further submit that the (b)(13)(iv), (b)(13)(v) and (c)(4), and Rule load. Accordingly, Applicants submit 22c–1 to the extent necessary to permit extent to which favorable investment that the CDSC is consistent with the deductions of: (a) part of a Contract’s experience is used to increase death definition of ‘‘sales load’’ set forth in sales charge from premium payments benefits rather than cash values differs Rule 6e–2(c)(4). Applicants, however, and part from Account Value as a CDSC, considerably among the contracts request the exemptions noted above in and (b) the CDAC from Account Value. offered by different issuers in reliance order to avoid any question concerning Both the CDSC and the CDAC will be on Rule 6e–2. Applicants also submit full compliance with the 1940 Act and deducted on surrender, Face Amount that, under all contract designs, the any regulations thereunder. reduction (including upon partial degree to which investment 3. Section 27(a)(1) and Rule 6e– withdrawals), or lapse. performance changes the death benefit 2. Section 2(a)(35) and Rules 6e–2 2(b)(13)(i). Section 27(a)(1) limits sales necessarily has an impact on cash (b)(1) and (c)(4). Applicants assert that load in terms of a maximum percentage values under the Contracts. Section 2(a)(35) 11 and Rules 6e–2 (b)(1) of payments to be made on a periodic 8. Applicants represent, that, and (c)(4) 12 may be read to contemplate payment plan certificate. Rule 6e– generally, higher death benefits require that the sales charge for a variable life 2(b)(13)(i) limits the amount of sales higher cost of insurance deductions insurance contract will be deducted charges on a variable insurance contract which, in turn, result in lower cash from premium payments. Applicants to a maximum of 9% of the payments values. Applicants state that it is submit that Guardian’s deduction of the to be made under the contract during a desirable for purchasers to be free to CDSC from Account Value may be period equal to or the lesser of (a) 20 choose a benefit structure which they deemed inconsistent with these years or (b) the anticipated life believe suits their own needs with provisions. Further, deduction of the expectancy of the insured, based on the respect to the relationship of cash value, CDSC also may be deemed inconsistent 1958 Commissioners’ Standard death benefit and investment with Rule 6e–2(c)(4) because, in order to Ordinary Mortality Table (‘‘1958 CSO performance. Applicants also state that facilitate the payment and other Tables’’). Contract owners can do this by, for flexibility features under the Contracts, Applicants assert that Section 27(a)(1) example, deciding whether to apply the CDSC is computed based on the and Rule 6e–2(b)(13)(i) could be read to excess value to purchase extra death lesser of actual payments made or Basic contemplate that the sales charge under benefit. Using excess value for this Scheduled Premiums payable (rather the Contracts will be deducted from purpose will maximize the guaranteed than as the excess of actual premium Premium Payments prior to their death benefit in the event of favorable payments made over certain amounts, as allocation to the Separate Account. investment experience, but will cause required by the literal terms of that Consequently, Guardian’s deduction of provision). Accordingly, Applicants part of its sales charge as a CDSC may Rule 6e–2, such as paragraph (c)(3), recognize the request exemptions from Section be deemed inconsistent with the existence of partial withdrawals; in addition, partial 2(a)(35) and Rule 6e–2 (b)(1) and (c)(4) foregoing provisions to the extent that withdrawals and reductions in Face Amount are the sales charge is deducted from other common features in Contracts governed by Rule 6e– 2. Applicants do not seek exemptive relief in this 11 ‘‘Sales load’’ is defined under Section 2(a)(35), than premium payments. Applicants regard. in relevant part, as: thus request exemptions from Section Applicants also state that they believe the ‘‘the difference between the price of a security to 27(a)(1) and Rule 6e–2(b)(13)(i) to the Contract Options provide an additional benefit to a the public and that portion of the proceeds from its extent necessary to permit part of the Contract owner by making it possible to continue sale which is received and invested or held for Contracts’ sales charge to be deducted as insurance protection and participation in the investment by the issuer (or in the case of a unit Separate Account, if desired, even though the investment trust, by the depositor or trustee), less a CDSC upon surrender, Face Amount Contract owner may not continue to pay Contract any portion of such difference deducted for reduction (including upon partial Premiums. Similarly, Applicants believe the trustee’s or custodian’s fees, insurance premiums, withdrawal) or lapse. existence of the Primary Insured Term Rider and issue taxes, or administrative expenses or fees 4. Sections 26(a)(2) and 27(c)(2). which are not properly chargeable to sales or Fixed-Rate Option enhance the benefits available to 13 a Contract owner. Applicants believe the promotional activities.’’ Applicants state that Sections 26(a)(2) availability of these options does not modify the 12 Under Rule 6e–2(b)(1), ‘‘sales load’’ has the basic characteristics of the Contract and, therefore, meaning set forth in Rule 6e–2(c)(4), which defines 13 Section 26(a)(2) provides, in relevant part, that: is consistent with the fundamental nature of the ‘‘sales load’’ charged on any payment as the excess ‘‘no principal underwriter for a depositor of a Contracts as variable life insurance contracts under of the payment over the sum of certain other registered unit investment trust shall sell any paragraph (c)(1) of Rule 6e–2. amounts. Continued 30142 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices and 27(c)(2) 14 may be read to require deduction of the Surrender Charge can net Basic Scheduled Premiums and that proceeds of all Premium Payments be viewed as reducing the proceeds that unscheduled payments made, reduced under a Contract be deposited in the the Contract owner would receive on by the amount of all charges and Separate Account, and that no payment surrender below a Contract owner’s deductions and increased or decreased be made from the Separate Account to proportionate share of the Separate by the amount of investment any Applicant, or any affiliated person Account’s current net assets. performance credited to a Contract). thereof, except for bookkeeping and Further, Applicants note that Rule 6e– 6. Section 22(c) and Rules 6e–2(b)(12) other administrative services. 2 was adopted at a time when less and 22c–1. Applicants state that Rule Accordingly, Guardian’s imposition of flexibility regarding payments and other 22c–1 prohibits the redemption of a the CDSC may be deemed to be contract features was offered than Contract except at its current net asset inconsistent with the foregoing subsequently has been permitted. value next computed after receipt of the provisions to the extent that the Because of these features, Applicants request for surrender or partial deduction could constitute payment for state that it is unclear how the technical withdrawal. Rule 6e–2(b)(12) provides an expense not specifically permitted. sales load computation provisions in exemptions from the redemption Applicants thus request exemptions Rule 6e–2 apply to the Contracts. procedures mandated by Rule 22c–1. from Sections 26(a)(2) and 27(c)(2) to Accordingly, because certain provisions Nonetheless, Applicants submit that the the extent necessary to permit the CDSC of the Contracts’ sales charge structure rule may not contemplate the deduction to be deducted upon surrender, Face may be inconsistent with the provisions of the Surrender Charge, which can be Amount reduction (including upon of Sections 2(a)(32), 27(c)(1) and 27(d) viewed as causing a Contract to be partial withdrawal) or lapse of a and paragraphs (b)(12), (b)(13)(iv) and redeemed at a price based on less than Contract. (b)(13)(v) of Rule 6e–2, Applicants a Contract’s current net asset value next 5. Sections 2(a)(32), 27(c)(1) and request exemptions from those computed after full or partial surrender 27(d), Rules 6e–2(b)(12), (b)(13)(iv) and provisions to the extent necessary to of a Contract. Consequently, the (b)(13)(v). Sections 2(a)(32), 27(c)(1) and permit part of the Contracts’ sales Surrender Charge may be deemed to be 27(d) prohibit Applicants from selling a charge to be deducted from Premium inconsistent with the foregoing rules. Contract unless it is a ‘‘redeemable Payments and part to be deducted as a Applicants submit that Rule 22c–1 security,’’ defined under Section CDSC, and to permit the deduction of and Rule 6e–2(b)(12) together impose 2(a)(32) as entitling an owner of a the CDAC on surrender, Face Amount requirements with respect to both the Contract, upon surrender, to receive reduction (including upon partial amount payable on surrender and the approximately his or her proportionate withdrawal) or lapse. time as of which such amount is share of the Separate Account’s current In addition, Applicants submit that, calculated. The requirement of these net assets. Section 27(d) provides a although Section 2(a)(32) does not rules regarding the amount payable to a Contract owner with certain surrender specifically contemplate the imposition Contract owner on surrender is and sales charge refund rights. of a sales charge and an administrative essentially the same as the requirements Rules 6e–2(b)(12), (b)(13)(iv) and charge at the time of redemption, such that are explicit or implicit in certain (b)(13)(v) provide exemptions from charges are not necessarily inconsistent other provisions of the 1940 Act and Section 27(a)(1), and Rule 6e– with the definition of ‘‘redeemable rules thereunder from which Applicants 2(b)(13)(iv) and (b)(13)(v) afford security.’’ Applicants further submit are requesting exemptions. exemptions from Section 27(d), to the that the charges are little different, for Regarding the timing requirement of extent necessary for cash value to be this purpose, from the ‘‘redemption’’ Rule 22c–1, Applicants state that they regarded as satisfying the redemption charge authorized in Section 10(d)(4) of will determine the Net Cash Surrender and sales charge refund requirements of the 1940 Act. Applicants argue that Value under a Contract consistent with the 1940 Act. Applicants note, however, Congress intended that such a their current procedures and in that the exemptions afforded by Rules redemption charge, expressly described accordance with Rules 6e–2(b)(12)(i) 6e–2(b)(12), 6e–2(b)(13)(iv) and as a ‘‘discount from net asset value,’’ be and 22c–1, and on a basis next (b)(13)(v) may not contemplate the deemed consistent with the concept of computed after receipt of a Contract deduction of the Surrender Charge (i.e., ‘‘proportionate share’’ under Section owner’s request for surrender of a the CDSC and the CDAC). Guardian’s 2(a)(32). Contract or partial withdrawal. In Consistent with Section 2(a)(32), addition, Applicants assert that the security of which the trust is the issuer unless the Applicants therefore assert that the Commission’s purpose in adopting Rule instrument pursuant to which the security is issued Contracts will be ‘‘redeemable 22c–1 was to minimize (i) dilution of provides that no payment to the depositor of or the securities’’ because the Contracts the interests of the other security principal underwriter for such trust, or to any provide for full surrender for the Net holders and (ii) speculative trading affiliated person of such depositor or underwriter, Cash Surrender Value and are expected practices that are unfair to such holders. shall be allowed the trustee or custodian as an expense, expect that provision may be made for the to provide for partial withdrawals of Applicants state that the CDSC would in payment to any such person of a fee, not exceeding Cash Surrender Value in excess of the no way have the dilutive effect that Rule such reasonable amount as the Commission may Benchmark value. Applicants represent 22c–1 is designed to prohibit because a prescribe, as compensation for performing that the prospectus for the Contracts surrendering Contract owner would bookkeeping and other administrative services of a character normally performed by the trustee or will disclose the contingent deferred ‘‘receive’’ no more than an amount custodian itself.’’ nature of part of the sales charge and of equal to the Net Cash Surrender Value 14 Section 27(c)(2) provides, in relevant part, that: the administrative charges. Accordingly, determined pursuant to the formula set ‘‘it shall be unlawful for any registered investment Applicants state that there will be no out in his or her Contract and after company issuing periodic payment plan certificates, or for any depositor of or underwriter restriction on, or impediment to, receipt of the request. Further, variable for such company, to sell any such certificate unless surrender that should cause the life insurance contracts do not lend the proceeds of all payments on such certificate Contracts to be considered other than a themselves to the kind of speculative (except such amounts as are deducted for sales redeemable security. Upon surrender or short-term trading that Rule 22c–1 was load) are deposited with a trustee or custodian having specified qualifications and are held by such lapse, a Contract owner will receive his aimed against, and, further, the CDSC trustee or custodian under an indenture or or her proportionate share of the would discourage, rather than agreement containing specified provisions.’’ Separate Account (i.e., the amount of encourage, any such trading. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30143 7. In support of their request for contingent deferred charges and deducts C. Deductions From Account Value of exemptions relating to sales and these charges entirely from premiums, it the Cost of Insurance, Guaranteed administrative charges, discussed above, could be charging continuing Contract Insurance Amount Charge and Premium Applicants submit that the deduction on owners more than otherwise may be Assessments a contingent deferred basis of part of the necessary to recover the distribution 1. Applicants submit that Sections sales charge and the administrative and issuance costs attributable to such 26(a)(2) and 27(c)(2), read together, charge will be advantageous to Contract Contract owners. Applicants contend could be interpreted to prohibit owners for the following reasons. that their charge structure, by contrast, Guardian from deducting the following a. First, the deferred charge structure provides greater equity among both charges from Account Value: (a) Cost of has been accepted as an appropriate Contract owners who surrender and insurance charge, (b) guaranteed feature of life insurance products under those who continue as Contract owners. insurance amount charge, and (c) if a Rule 6e–3(T) as well as pursuant to Contract Premium is ‘‘skipped,’’ charges 9. Applicants state that the CDSC, exemptive relief granted by the for Premium Assessments in connection Commission, expands investors choices consistent with the definition in Section with the Premium Skip Option. without sacrificing investor protection, 2(a)(35), is an amount ‘‘chargeable to Accordingly, Applicants request and reinforces the intention that the sales or promotional activities.’’ exemptions from Sections 26(a)(2) and product be held as a long term Although not imposed on ‘‘payments,’’ 27(c)(2) and Rule 6e–2(b)(13)(iii) 16 to investment. Applicants submit that the charge will the extent necessary to permit b. Second, the amount of a Contract cover expenses associated with the offer deduction of these charges from owner’s premium payment allocated to and sales of the Contracts, including Account Value.17 Applicants submit the Separate Account and available to commissions paid to sales personnel, that, as described above, the method of earn a return for a Contract owner will promotional expenses and sales deducting these charges is fair and be greater than it otherwise would have administration expenses. Similarly, the reasonable in that the charges are not been if the sales and administrative CDAC is for estimated administrative designed to yield more revenues than if charges were deducted from Premiums. expenses connected with the Contracts. they were assessed solely against c. Third, Applicants represent that the premium payments. total dollar amount of a sales load Applicants represent that these administrative expenses exclude any 2. Cost of Insurance Charges. payable under a Contract is no higher Applicants submit that the method of than would be permitted by Rule 6e– costs properly attributable to sales or distribution activity. deducting this charge is fair and 2(b)(13), if taken entirely as front-end reasonable. Applicants represent that deductions from Premium Payments 10. Applicants contend that the fact they believe all other variable life under a Contract for which all Premium that the timing of the imposition of the insurance contracts provide for cost of Payments have been paid, as well as Surrender Charge may not fall within insurance deductions from cash value, from any unscheduled Premium the literal pattern of all the provisions which under a Contract consists of the Payments. Moreover, for a Contract discussed herein does not change the unloaned Account Value. owners who does not lapse or surrender essential nature of the sales charge 3. Premium Assessments. As in the early Contract years, the dollar structure. described above, Premium Assessments amount of the sales load is lower than are deducted from Premium Payments otherwise would be permitted if taken 11. Although the methodology for computing sales charges under the before the Basic Scheduled Premium entirely as front-end deductions. (net of Premium Charges) is allocated to Furthermore, no Surrender Charge is Contracts may not have been contemplated by Rule 6e–2 as originally the Separate Account. However, when, deducted from any Death Benefit paid pursuant to the Premium Skip Option, adopted, Applicants represent that the under a Contract. Premiums are ‘‘skipped,’’ and not paid, percentage of sales load imposed during Similarly, the total dollar amount of an amount equal to 90.5% of any the first two Contract Years will be no the CDAC under a Contract is no higher Premium Assessment that otherwise than if the charge were taken in full for greater than the sum of: 30% of would be deducted from a premium will the first Contract year, and is less for payments made during the first Contract be deducted from Account Value on Contract owners who do not lapse, Year up to an amount equal to an reduce the Face Amount by request or annual Basic Scheduled Premium, plus 16 Rule 6e–2(b)(13)(iii) provides an exemption partial withdrawal, or surrender prior to 10% of payments made during the from Sections 27(c)(2) and 26(a)(2), subject to the thirteenth Contract year. Applicants second Contract Year up to an amount certain conditions, which Applicants submit they represent that this charge has not been equal to an annual Basic Scheduled satisfy as noted herein. 17 Applicants state that they are not seeking increased to take into account the time Premium, plus 9% of all unscheduled exemptions from these provisions with regard to the value of money or the fact that not all Premium Payments made during the maximum handling fee for unscheduled premium Contract owners will incur the charge. first two Contract Years. Additionally, payments that may be imposed under the Contracts (which will be deducted from premium payments Applicants state that Guardian does not the percentage of sales load under the 15 in reliance on Rule 6e–2(c)(4)(iv), or the CDAC, the anticipate a profit on the CDAC. Contract will not exceed 9% of Basic partial withdrawal charge, the transfer charge that d. Fourth, the allocation of a greater Scheduled Premiums expected to be may be imposed under the Contracts, or the amount of Premium Payments to the paid over the shorter of 20 years or the Contract and Administration Charges deducted as Separate Account initially reduces the part of the monthly deduction (each of which will net amount at risk (Death Benefit less expected life expectancy of the insured. be deducted pursuant to Rule 6e–2(b)(13)(iii). Applicants state that each of these charges is Account Value), upon which the cost of Moreover, Guardian does not anticipate making a profit on the CDAC. Therefore, reasonable, and in an amount that does not exceed insurance charge is based. the expenses to which such charge relates that are 8. Applicants submit that if Guardian Applicants submit that the Contract is currently anticipated to be incurred by Guardian is not permitted to charge sales and consistent with the principals and over the lifetime of the insureds covered by the policies underlying the limitations of Contracts. Applicants represent that the maximum administrative charges in the form of amount of each of these fees and charges is Section 27 and Rule 6e–2(b)(13). guaranteed not to increase during the term of the 15 Guardian intends to rely on Rule 6e– Contracts. Guardian does not anticipate realizing a 2(b)(13)(iii)(C) with regard to the CDAC. profit on these fees or charges. 30144 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices each Contract Anniversary on which the upon exercise of the Premium Skip of whom are not interested persons of ‘‘skipped’’ Premium otherwise would be Option. the company, formulate and approve due or, in later, on the date the Premium 4. Guaranteed Insurance Amount such plan. Skip Option is effected. The remaining Charge. Applicants represent that the 9.5% is deducted as part of the guaranteed insurance amount charge D. Request for Exemptions Relating to Premium Charges when any compensates Guardian for the risk that Use of 1980 CSO Tables it assumes in guaranteeing death unscheduled Premium Payment is 1. As discussed above, Rule 6e–2(b)(1) made. Thus, part of the Premium benefits under a Contract. Applicants makes the definition of ‘‘sales load’’ in Charges applied to any unscheduled submit that this charge essentially is an Rule 6e–2(c)(4) applicable to the Payment is to collect charges covered by insurance charge that was not Contracts. Section 27(a)(1) prohibits an Rules 6e–2(c)(4)(vi) and (vii), which contemplated at the time that the 1940 refer to charges for substandard risk and Act was adopted. Although Rule 6e– issuer of periodic payment plan for incidental insurance benefits 2(c)(4)(iii) provides for such a charge, it certificates from imposing a sales load deducted from Account Value. does not expressly authorize it to be exceeding 9% of the payments to be Applicants represent that if Premium deducted from Account Value. made on such certificates. Rule 6e– Assessments were required to be Applicants submit that Rule 6e–3(T) 2(b)(13)(i) provides an exception from deducted solely from Premiums, it authorizes deductions from Account Section 27(a)(1) to the extent that sales would be necessary for Guardian: (a) to Value for a minimum death benefit load, as defined in Rule 6e–2(c)(4), does reduce Contract payment flexibility, guarantee charge in connection with not exceed 9% of payments to be made and/or (b) further limit the classes of variable life insurance contracts on the variable life insurance contract insureds for whom a Contract will be qualified to rely on that rule, during the period equal to the lesser of available and limit or eliminate the rider conditioned on the life insurer’s making 20 years or the anticipated life benefits to be made available under a certain representations. Further, expectancy of the insured based on the Contract. Applicants submit that proposed amendments to Rule 6e–2 1958 CSO Tables. Rule 6e–2(c)(4), in purchasers and prospective purchasers would similarly authorize such defining sales load, contemplates the of a Contract would find these results deductions from Account Value. deduction of an amount for the cost of undesirable. Accordingly, Guardian makes the insurance based on the 1958 CSO Tables Rule 6e–2(c)(4), among other things, following representations and and an assumed investment rate requires that charges referred to in Rule undertakings, which are consistent with specified in the contract.18 6e–2(c)(4)(vi) and (vii) be subtracted the proposed amendments: from gross payments in determining (a) The level of the guaranteed 2. Applicants assert it is appropriate amounts of ‘‘sales load.’’ Rule 6e–2(c)(7) insurance amount charge is reasonable that the deduction for the cost of requires the amount of gross premiums in relation to the risks assumed by insurance be based on the 1980 CSO attributable to such charges to be Guardian under the Contracts. The Tables in determining what is deemed subtracted for purposes of determining methodology used to support this to be the sales load under the Contracts the amount of ‘‘payments’’ on which representation is based on an analysis of because: (a) the 1980 CSO Tables 19 sales load percentages are calculated in the pricing structure of the Contracts, reflect more recent information and data order to evaluate compliance with Rule including all charges, and an analysis of about mortality than the 1958 CSO 6e–2’s various sales load limitations. the various risks, including special risks Tables; (b) use of either the 1958 CSO Accordingly, Applicants subtract any arising out of Contract provisions that Tables or the 1980 CSO Tables be Premium Assessments (including that allow unscheduled payments and, in permitted under proposed amendments deducted from Premiums and from certain circumstances, skipping to Rule 6e–2 for purposes of Rule 6e– Account Value upon exercise of Premiums. Guardian undertakes to keep 2(b)(13)(i) and (c)(4), depending on Premium Skip Option) from Premium and make available to the Commission which relates to the insurance rates Payments to compute ‘‘sales load’’ on request the documents or guaranteed under a contract; and (c) the under Rule 6e–2(c)(4) and to compute memoranda used to support this the amount of payments under Rule 6e– representation. 18 An assumed investment rate of 4% is specified 2(c)(7). (b) Guardian has concluded that: the in the Contract and used for purposes of Where, because of the payment and proceeds from the sales charges may not determining the required Basic Scheduled cover the expected costs of distribution; Premiums. ‘‘Assumed investment rate’’ is defined other flexibility features of a contract, by Rule 6e–2(c)(5) to be the net rate of investment the entire Premium for a Contract Year surplus arising from the guaranteed return specified in the contract which would result is not paid, Rule 6e–2(c)(7) might still insurance amount charge (among other in neither an increase nor a decrease in the variable require Applicants to deduct certain sources) may be used to cover the death benefit of the contract above or below the amounts from any payments that were distribution costs; and there is a guaranteed minimum death benefit. Applicants submit that this definition accurately describes the made, for sales load compliance reasonable likelihood that the Contract’s 4% assumed investment rate only so long purposes. These deductions would be distribution financing arrangements of as all other assumptions used in establishing Basic for payments made that would be the Separate Account will benefit the Scheduled Premiums holds true and only until the deemed ‘‘attributable’’ to charges for Separate Account and the Contracts Death Benefit is increased in order for the Contract to qualify as life insurance for federal tax law substandard risks and incidental owners. Guardian undertakes to keep purposes or the variable insurance amount is insurance benefits. If this were so, and make available to the Commission applicable. Applicants assert, however, the Rule Applicants would subtract the same on request a memorandum setting forth 6e–2(c)(5) has never been interpreted to require that amount in determining the amount of basis of this representation; and a contract’s death benefit always vary in relation to performance above or below the assumed sales load under paragraph (c)(4) of Rule (c) The Separate Account will invest investment rate. Applicants believe it is appropriate 6e–2. The amount would be the same, only in management investment to consider 4% to be the assumed investment rate because part of any payments deemed companies that have undertaken, in the for purposes of Rule 6e–2(c)(5) and, thus, seek no ‘‘attributable’’ to such charges would, in event they should adopt any plan under exemptive relief in this regard. 19 Applicants state that the 1980 CSO Tables were effect, be deducted as a portion of Rule 12b–1 to finance distribution adopted by the National Association of Insurance Premium Charges, and part would be expenses, to have a board of directors Commissioners subsequent to adoption of Rule 6e– deducted as a portion of Account Value (or trustees, as appropriate), a majority 2 by the Commission. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30145 1980 CSO Tables must be used for all requirements of the 1940 Act and Rule that the exemptions will be consistent contracts that rely on Rule 6e–3(T). 6e–2 regarding share ownership are in- with the public interest, the protection 3. Applicants further represent that: consistent with current industry of investors and the purposes fairly (a) Guardian uses the 1980 CSO Tables practice and its rationale. intended by the policy and provisions of to establish Premium rates and 3. Applicants further note that the the 1940 Act. determine reserve liabilities for the Commission has adopted and proposed Contracts; (b) the guaranteed cost of the following rules which would grant F. Request for Exemptions Relating to insurance rates under the Contracts are the requested exemptions: (a) Rules 6e– Waiver of Notice of Withdrawal and based on the 1980 Tables; (c) the 3(T)(b)(13)(iii)(B) and (C), in effect, grant Refund Rights mortality rates reflected in the 1980 the requested exemptions, but only for 1. Section 27(e) and Rules 27e–1 and CSO Tables more nearly approach the contracts covered by Rule 6e–3(T); (b) 6e–2(b)(13)(vii),20 in effect require a mortality experience which Guardian proposed Rule 6e–2(b)(13)(iii)(B) would notice of right of withdrawal and refund believes will apply to the Contracts; and permit a life insurer, such as Guardian, on Form N–271–1 to be provided to (d) for Contracts issued for insured at to hold the assets of a separate account Contract owners entitled to a refund of advance ages, appropriate adjustments without a trust indenture or other such sales load in excess of the limits have been made in the CDSC structure instrument; (c) proposed Rule 6e– permitted by Rule 6e–2b(13)(v). The to ensure that, subject to the other 2(b)(13)(iii)(C) would permit a separate Contracts limit the amount of the CDSC exemptive relief requested herein, the account organized as a UIT to hold the that may be deducted by excess sales 9% standard prescribed by Rule 6e– securities of registered investment load limits consistent with those set 2(b)(13)(i) will be met over the expected companies, such as the Funds, that offer forth in Rule 6e–2(b)(13)(v)(A). Thus, lifetimes of such insureds, based on the shares to the Separate Account in under the Contracts’ sales load 1980 CSO Tables. uncertificated form; and (d) Rule 26a–2, structure, no excess sales load will be adopted by the Commission, affords E. Request for Exemptions Relating to paid by or refunded to a Contract owner exemption essentially similar to those Custodianship Arrangements surrendering, effecting a Face Amount requested here regarding variable reduction or lapsing in the first two 1. Applicants state that Section annuity contracts. Applicants presume, Contract years.21 26(a)(1) and Section 26(a)(2), in effect, based on information and belief, that the 2. Rule 27e–1(a) specifies that no prohibit Applicants from selling the Commission adopted or proposed the notice need be mailed when there is Contracts unless the Contracts are foregoing exemptive rules based on a otherwise no entitlement to receive any issued pursuant to a trust indenture or determination that safekeeping of refund of sales load. Rule 27e–1 and other such instrument that designates separate account assets does not Rule 6e–2 were both adopted in the one or more qualified trustees or necessarily depend on the presence of a context of front-end loaded products custodians to have possession of all trustee, custodian or trust indenture or only, and in the broader context of the securities in which Guardian and the the issuance of share certificates, where companion requirements in Section 27 Separate Account invest. Applicants state insurance law protects separate for the depositor or underwriter to submit that Section 27(c)(2), in effect, account assets, and open account maintain segregated funds as security to could be read to prohibit Applicants arrangements foster administrative assure the refund of any excess sales from selling the Contracts unless the efficiency and cost savings. load. proceeds of all Premium Payments are 4. The proposed exemptive provisions 3. Applicants submit that requiring deposited with a qualified trustee or of Rule 6e–2(b)(13)(iii)(B) and (C) delivery of Form N–271–1 could custodian. Applicants further submit subject a life insurer to certain confuse Contract owners and potentially that Rule 6e–2(b)(13)(iii), in relevant conditions. Guardian represents that it encourage a Contract owner to surrender part, provides an exemption from will: (a) comply with conditions of Rule during the first two Contract Years Sections 26(a)(1), 26(a)(2) and 27(c)(2), 6e–2(b)(13)(iii)(B) and (C); (b) comply against the Contract owner’s best provided that Guardian complies with with all other applicable provision of all other applicable provisions of Section 26 as if it were a trustee or 20 Section 27(e) requires, with respect to any Section 26 as though it were a trustee or custodian for the Separate Account periodic payment plan certificate sold subject to custodian for the Separate Account and (subject to the other exemptive relief Section 27(d) (which requires the refund of any assuming it meets the other requested in this application); and (c) excess sales load paid during the first 18 months requirements set forth in the rule. after issuance), written notification of the right to will file with the insurance regulatory surrender and receive a refund of the excess sales 2. Applicants assert that the holding authority of Delaware an annual load. Rule 27(e) establishes the requirements for the of Fund shares by Guardian and the statement of its financial condition in notice mandated by Section 27(e) and prescribes Separate Account under an open the form prescribed by the National Form N–271–1 for that purpose. Rule 6e–2(b)(13), account arrangement, without having which modifies the requirements of Section 27 and Association of Insurance the rules thereunder, adopts Form N–271–1 and possession of share certificates and Commissioners, which most recent requires it to be sent to a contract owner upon without a trust indenture or other such statement indicates that it (i) has a issuance of a contract and again during any lapse instrument, may be deemed to be combined capital and surplus of not less period in the first two contract years. The Form inconsistent with the foregoing than $1 million, (ii) is examined from requires statements of (i) the contract owner’s right to receive back excess sales load for a surrender provisions. Nevertheless, Applicants time-to-time by the insurance regulatory during the first two contract years, (ii) the date that represent that current industry practice authority of Delaware as to its financial the right expires, and (iii) the circumstances in calls for separate accounts organized as condition and other affairs, and (iii) is which the right may not apply upon lapse. UITs, such as the Separate Account, to subject to supervision and inspection 21 Applicants submit that the application of the technical sales load computation provisions in Rule hold shares of management investment with respect to its separate account 6e–2 to a modified scheduled premium contract is companies in uncertificated form. This operations. unclear. Applicants state that the reduction of the practice is believed to contribute to 5. Applicants further believe that the CDSC during the first two Contract Years is efficiency in the purchase and sale of Commission has determined that intended to reflect the requirements of Rule 6e–2 and take into account the Contract’s payment such shares by separate accounts and to compliance with such conditions, flexibility in a manner that is consistent with Rule bring about cost savings generally. which contemplate state protection of 6e–3(T)(b)(13)(v)(A), which specifically addresses Therefore, Applicants submit that the separate account assets, will help assure flexible premium variable life insurance products. 30146 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices interest to do so. Further, an owner of 2(a)(35) of the 1940 Act, for purposes of essentially will be the after-tax rate of a variable insurance contract with a Section 27 and the exemptions from return Guardian seeks on its surplus, declining deferred sales charge, unlike a various provisions of that Section found which is in excess of 10%. Accordingly, front-ended contract, does not foreclose in Rules 6e–2 and 6e–3(T), respectively. Applicants submit that the rate of return his or her opportunity at the end of the 2. Applicants state that Section 848, on surplus is appropriate for use in this first two contract years to receive a as amended, requires life insurance present value calculation. refund of monies spent. Not only has companies to capitalize and amortize 6. To the extent that the 10% discount such an owner not paid any excess load, over ten years certain general expenses rate is lower than Guardian’s actual rate but because the deferred charge declines for the current year rather than deduct of return on surplus, the calculation of over the life of the Contract, the these expenses in full from the current this increased tax burden will continue Contract owner may never have to pay year’s gross income, as allowed under to be reasonable over time, even if the it. Applicants submit that encouraging a prior law. Section 848 effectively corporate tax rate applicable to surrender during the first two Contracts accelerates the realization of income Guardian is reduced, or its targeted rate years could cost a Contract owner more from specified contracts and, of return is lowered. in total sales load (relative to total consequently, the payment of taxes on 7. In determining the after-tax rate of payments) than he or she otherwise that income. Taking into account the return used in arriving at the discount would pay if the Contract, which is time value of money, Section 848 rate, Guardian considered a number of designed as a long-term investment increases the insurance company’s tax factors that apply to itself and to its vehicle, were held for the period burden because the amount of general parent, including market interest rates, originally intended. deductions that must be capitalized and anticipated long-term growth rates, the 4. Because of the absence of excess amortized is measured by the premiums risk level for this type of business that sales load, and therefore, the absence of received under the Contracts. is acceptable, inflation, and available an obligation to assure repayment of 3. Deductions subject to Section 848 information about the rate of return that amount, Applicants believe that the equal a percentage of the current year’s obtained by other life insurance Contracts do not create the right in a net premiums received (i.e., gross companies. Guardian represents that Contract owner which Form N–271–1 premiums minus return premiums and these are appropriate factors to consider. was designed to highlight. In the reinsurance premiums) under life 8. First, Guardian projects its future absence of this right, Applicants submit insurance or other contracts categorized growth rate, including the future growth that the notification contemplated by under this Section. The Contracts will rate of its parent, based on sales Form N–271–1 creates an unnecessary be categorized under Section 848 as life projections, current interest rates, and counterproductive administrative insurance contracts requiring 7.7% of inflation rate and amount of surplus that burden the cost of which appears the net premiums received to be can be provided to support such growth. unjustified. Any other purpose capitalized and amortized under the Guardian then uses the anticipated potentially served by the Form would schedule set forth in Section 848(c)(1). growth rate and the other factors to set already be addressed by the required 4. The increased tax burden on every a rate of return on surplus that equals Form N–271–2 Notice of Withdrawal $10,000 of net premiums received under or exceeds this rate of growth. Of these Right, generally describing the charges the Contracts is quantified by other factors, market interest rates, associated with a Contract, and Applicants as follows. For each $10,000 acceptable risk level and inflation rate prospectus disclosure detailing a of net premiums received in a given receive significantly more weight than Contract’s sales load structure. year, Guardian must capitalize $770 information about the rates of return Applicants assert that neither Congress, (i.e., 7.7% of $10,000), and $38.50 of obtained by other companies. in enacting Section 27, nor the this amount may be deducted in the 9. Guardian and its parent seek to Commission, in adopting Rule 27e–1 current year. The remaining $731.50 maintain a ratio of surplus to assets that and Rule 6e–2, could have ($770 less $38.50) is subject to taxation is established based on its judgment of contemplated the applicability of Form at the corporate tax rate of 35% and the risks represented by various N–271–1 in the context of a Contract results in $256.03 (.35% × $731.50) components of its assets and liabilities. with a declining contingent deferred more in taxes for the current year than Maintaining the ratio of surplus to sales charge. Guardian otherwise would have owned assets is critical to offering prior to OBRA 1990. However, the competitively priced products and to G. Deduction of Charge for Section 848 current tax increase will be offset maintaining the superior ratings now Deferred Acquisition Costs partially by deductions allowed during assigned to Guardian and its parent by 1. Applicants request exemptive relief the next ten years, which result from various rating agencies. Consequently, from Section 27(c)(2) of the 1940 Act to amortizing the remainder of the $770 Guardian’s surplus should grow at least permit the deduction of the 1.0% charge ($77 in each of the following nine years at the same rate as its assets. from each Premium Payment received and $38.50 in year ten). 10. Using a federal corporate tax rate under the Contracts, and from 5. It is Guardian’s business judgement of 35%, and assuming a discount rate of premiums received under Other that it is appropriate to use a discount 10%, the present value of the tax effect Contracts to be issued by Guardian rate of 10% in evaluating the present of the increased deductions allowable in through the Future Accounts to value of its future tax deductions for the the following ten years, which partially reimburse Guardian for its increased following reasons. Guardian has offsets the increased tax burden, comes federal tax burden resulting from the computed its cost of capital as the after- to $152.96. The effect of Section 848 on application of Section 848 of the Code, tax rate of return that it seeks to earn on the Contracts is therefore an increased as amended, to the receipt of those its surplus, which is in excess of 10%. tax burden with a present value of premiums. Applicants also request To the extent that surplus must be used $91.15 for each $10,000 of net exemptions from subparagraph (c)(4)(v) by Guardian to pay its increased federal premiums (i.e., $244.11 less $152.96). of Rules 6e–2 and 6e–3(T) under the tax burden under Section 848, such 11. Guardian does not incur 1940 Act to permit the proposed surplus will be unavailable for incremental federal income tax when it deductions to be treated as other than investment. Thus, the cost of capital passes on state premium taxes to ‘‘sales load,’’ as defined under Section used to satisfy this increased tax burden Contract Owners because state premium Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30147 taxes are deductible in computing 16. Section 27(c)(2) prohibits the sale deductions, arguably causing the federal income taxes. Conversely, of periodic payment plan certificates deduction to be treated as part of ‘‘sales federal income taxes are not deductible unless the following conditions are met. load.’’ in computing Guardian’s federal income The proceeds of all payments (except 20. Applicants state that the public taxes. To compensate Guardian fully for amounts deducted for ‘‘sales load’’ must policy that underlies paragraph (b)(13) the impact of Section 848, Guardian be held by a trustee or custodian having of each Rule, and particularly must impose an additional charge to the qualifications established under subparagraph (b)(13)(i), like that which make it whole for the $91.15 additional Section 26(a)(1) for the trustees of UITs. underlies paragraphs (a)(1) and (h)(1) of tax burden attributable to Section 848, Sales loads, as defined under Section Section 27, is to prevent excessive sales as well as the tax on the additional 2(a)(35), are limited by Sections 27(a)(1) loads from being charged for the sale of $91.15 itself, which can be determined and 27(h)(1) to a maximum of 9% of periodic payment plan certificates. by dividing $91.15 by the complement total payments on periodic payment Applicants submit that this legislative of 35% federal corporate income tax rate plan certificates. These proceeds also purpose is not furthered by treating a (i.e., 65%), resulting in an additional must be held under an indenture or federal income tax charge based on charge of $140.23 for each $10,000 of agreement that conforms with the premium payments as a sales load net premiums, or 1.40%. provisions of Section 26(a)(2) and because the deduction is not related to 12. Based on its prior experience, Section 26(a)(3) of the 1940 Act. the payment of sales commissions or Guardian reasonably expects to fully 17. Certain provisions of Rules 6e–2 other distribution expenses. Applicants take almost all future deductions. It is and 6e–3(T) provide a range of assert that the Commission has Guardian’s judgment that a charge of exemptive relief. Rule 6e–2 provides concurred with this conclusion by 1.00% of Basic Scheduled Premiums exemptive relief if the separate account excluding deductions for state premium and unscheduled Premium Payments issues scheduled variable life insurance taxes from the definition of sales load in would reimburse it for the increased contracts as defined in Rule 6e–2(c)(1). paragraph (c)(4) of each Rule. federal income tax liabilities under Rule 6e–3(T) provides exemptive relief 21. Applicants submit that the source Section 848. Applicants represent that if the separate account issues flexible for the definition of ‘‘sales load’’ found the 1.00% charge will be reasonably premium variable life insurance in paragraph (c)(4) of each Rule related to Guardian’s increased federal contracts, as defined in subparagraph supports this analysis. Applicants income tax burden under Section 848. (c)(1) of that Rule. believe that, in adopting paragraph This representation takes into account 18. Applicants state that paragraph (c)(4) of each Rule, the Commission the benefit to Guardian of the (b)(13)(iii) of Rule 6e–2 implicitly intended to tailor the general terms of amortization permitted by Section 848 provides, and paragraph (b)(13)(iii) of Section 2(a)(35) to variable life and the use of a 10% discount rate Rule 6e–3(T) explicitly provides, insurance contracts to ease verification (which is equivalent to Guardian’s rate exemptive relief from Section 27(c)(2) to by the Commission of compliance with of return on surplus) in computing the permit an insurer to make certain the sales load limits of subparagraph future deductions resulting from such deductions, other than sales load, (b)(13)(i) of each Rule. Just as the amortization. including the insurer’s tax liabilities percentage limits of Section 27(a)(1) and 13. Guardian believes, however, that from receipt of premium payments 27(h)(1) depend on the definition of the 1.00% charge would have to be imposed by states or by other sales load in Section 2(a)(35) for their increased if future changes in, or governmental entities. Applicants assert efficacy, Applicants assert that the interpretations of, Section 848 or any that the proposed deduction with percentage limits in subparagraph successor provision result in a further respect to Section 848 of the Code (b)(13)(i) of each Rule depend on increased tax burden due to receipt of arguably is covered by subparagraph paragraph (c)(4) of each Rule, which premiums. The increase could be (b)(13)(iii) of each Rule. Applicants does not depart, in principal, from caused by a change in the corporate tax note, however, that the language of Section 2(a)(35). rate, or in the 7.7% figure, or in the paragraph (c)(4) of the Rules appears to 22. Applicants submit that the amortization period. The Contracts will require that deductions for federal tax exclusion from the definition of ‘‘sales reserve the right to increase the 1.00% obligations from receipt of premium load’’ under Section 2(a)(35) of charge in response to future changes in, payments be treated as ‘‘sales load.’’ deductions from premiums for ‘‘issue or interpretations of, Section 848 or any 19. Applicants state that paragraph taxes’’ suggests that it is consistent with successor provisions that increase (b)(1), together with paragraph (c)(4), of the policies of the 1940 Act to exclude Guardian’s tax burden. each Rule provides an exemption from from the definition of ‘‘sales load’’ in 14. Applicants assert that it is the Section 2(a)(35) definition of ‘‘sales Rules 6e–2 and 6e–3(T) deductions appropriate to deduct this charge, and to load’’ by substituting a new definition to made to pay an insurer’s costs exclude the deduction of this charge be used for purposes of each respective attributable to its federal tax obligations. from sales load, because it is a Rule. Rule 6e–2(c)(4) defines ‘‘sales Additionally, the exclusion of legitimate expense of the company and load’’ charged on any payment as the administrative expenses or fees that are not for sales and distribution expenses. excess of the payment over certain ‘‘not properly chargeable to sales or Applicants represent that this charge specified charges and adjustments, promotional activities’’ also suggests will be reasonably related to Guardian’s including a deduction for state premium that the only deductions intended to fall increased federal tax burden. taxes. Rules 6e–3(T)(c)(4) defines ‘‘sales within the definition of ‘‘sales load’’ are 15. The Separate Account is, and the load’’ during a period as the excess of those that are properly chargeable to Future Accounts will be, regulated any payments made during that period sales or promotional activities. under the 1940 Act as issuers of over certain specified charges and Applicants state that the proposed periodic payment plan certificates. adjustments, including a deduction for deductions will be used to compensate Accordingly, the Separate Account, the state premium taxes. Under a literal Guardian for its increased federal tax Future Accounts, Guardian (as reading of paragraph (c)(4) of the Rules, burden attributable to the receipt of depositor), and Guardian Services (as a deduction for an insurer’s increased premiums and not for sales or principal underwriter) are deemed to be federal tax burden does not fall squarely promotional activities. Therefore, subject to Section 27 of the 1940 Act. into those itemized charges or Applicants believe the language in 30148 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices Section 2(a)(35) further indicates that c. The registration statement for the This determination shall be reported not treating such deductions as sales Contracts, and for such Other Contracts, to the Congress immediately and load is consistent with the policies of providing for the above-referenced published in the Federal Register. the 1940 Act. deduction will contain as an exhibit an Dated: May 12, 1995. 23. Finally, Applicants submit that it actuarial opinion as to: (1) The Peter Tarnoff, is probably an historical accident that reasonableness of the charge in relation Acting Secretary of State. the exclusion of premium tax in to Guardian’s increased federal tax [FR Doc. 95–13837 Filed 6–6–95; 8:45 am] subparagraph (c)(4)(v) of Rules 6e–2 and burden under Section 848 of the Code 6e–3(T) from the definition of ‘‘sales resulting from the receipt of premiums; BILLING CODE 4710±10±M load’’ is limited to state premium taxes. (2) the reasonableness of the rate of When these Rules were each adopted return on surplus that is used in Bureau of Political-Military Affairs and, in the case of Rule 6e–3(T), later calculating such charge; and (3) the amended, the additional Section 848 tax appropriateness of the factors taken into [Public Notice 2217] burden attributable to the receipt of account by Guardian in determining premiums did not yet exist. such targeted rate of return. Imposition of Chemical and Biological 24. Applicants submit that the terms Weapons Proliferation Sanctions On of the relief requested with respect to Conclusion Foreign Persons Other Contracts to be issued through For the reasons and upon the facts set AGENCY: Bureau of Political-Military Future Accounts are also consistent forth above, Applicants submit that the Affairs, Department of State. with the standards of Section 6(c). requested exemptions from Sections ACTION: Without the requested relief, Guardian Notice. 2(a)(32), 2(a)(35), 22(c), 26(a)(1), would have to request and obtain such 26(a)(2), 27(a)(1), 27(c)(1), 27(c)(2), SUMMARY: The United States exemptive relief for each Other Contract 27(d), and 27(e) of the 1940 Act and Government has determined that two to be issued through a Future Account. paragraphs (b)(1), (b)(12), (b)(13)(i), companies have engaged in chemical Such additional requests for expensive (b)(13)(iii), (b)(13)(iv), (b)(13)(v), weapons proliferation activities that relief would present no issues under the (b)(13)(vii), (c)(1), (c)(4) of Rule 6e–2, require the imposition of sanctions 1940 Act that have not already been and Rules 6e–3(T)(c)(4)(v), 22c–1 and pursuant to the Arms Export Control addressed in this Application. Act and the Export Administration Act 25. The requested relief is appropriate 27e–1 thereunder, are necessary and appropriate in the public interest and of 1979 (the authorities of which were in the public interest because it would most recently continued by Executive promote competitiveness in the variable consistent with the protection of investors and the purposes fairly Order 12924 of August 19, 1994), as life insurance market by eliminating the amended by the Chemical and need for Guardian to file redundant intended by the policy and provisions of the 1940 Act and, therefore, satisfy the Biological Weapons Control and exemptive applications regarding the Warfare Elimination Act of 1991. federal tax charge, thereby reducing its standards set forth in Section 6(c) of the EFFECTIVE DATE: May 19, 1995. administrative expenses and 1940 Act. maximizing the efficient use of its For the Commission, by the Division of FOR FURTHER INFORMATION CONTACT: resources. The delay and expense Investment Management, pursuant to Vann H. Van Diepen, Office of involved in having to repeatedly seek delegated authority. Chemical, Biological and Missile exemptive relief would impair Margaret H. McFarland, Nonproliferation, Bureau of Political- Guardian’s ability to effectively take Deputy Secretary. Military Affairs, Department of State advantage of business opportunities as [FR Doc. 95–13893 Filed 6–6–95; 8:45 am] (202–647–4930). they arise. BILLING CODE 8010±01±M SUPPLEMENTARY INFORMATION: Pursuant 26. The requested relief is consistent to Sections 81(a) and 81(b) of the Arms with the purposes of the 1940 Act and Export Control Act (22 U.S.C. 2798(a), the protection of investors for the same 2798(b)), Sections 11C(a) and 11C(b) of reasons. If Guardian were required to DEPARTMENT OF STATE the Export Administration Act of 1979 repeatedly seek exemptive relief with (50 U.S.C. app. 2410c(a), 2410c(b)), respect to the same issues regarding the Office of the Secretary Section 305 of the Chemical and federal tax charge addressed in this Biological Weapons Control and Application, investors would not [Public Notice 2214] Warfare Elimination Act of 1991 (P.L. receive any benefit or additional 102–182), Executive Order 12851 of protection thereby and might be Determination Under Section 620(f) of June 11, 1993, and State Department disadvantaged as a result of Guardian’s the Foreign Assistance Act of 1961, As Delegation of Authority No. 145 of increased overhead expenses. Amended February 4, 1980, as amended, the 27. Conditions for Relief: United States Government determined a. Guardian will monitor the Pursuant to section 620(f)(2) of the that the following foreign persons have reasonableness of the charge to be Foreign Assistance Act (FAA) of 1961, engaged in chemical weapons deducted pursuant to the requested as amended (22 U.S.C. 2370(f)(2)), and proliferation activities that require the exemptive relief. section 1–201(a)(12) of Executive Order imposition of the sanctions described in b. The registration statement for the No. 12163, as amended, I hereby Section 81(c) of the Arms Export Contracts, and for any Other Contracts determine that the removal of Laos from Control Act (22 U.S.C. 2798(c)) and under which the above-referenced the application of section 620(f) of the Section 11C(c) of the Export federal tax charge is deducted, will: (a) FAA is important to the national Administration Act of 1979 (50 U.S.C. disclose the charge; (b) explain the interest of the United States. I therefore app. 2410c(c)): purpose of the charge; and (c) state that direct that Laos be henceforth removed, 1. GE Plan (Austria) the charge is reasonable in relation to for an indefinite period, from the 2. Mainway Limited (Germany) Guardian’s increased federal tax burden application of section 620(f) of the FAA, Accordingly, the following sanctions under Section 848 of the Code. as amended. are being imposed: Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30149 (A) Procurement Sanction.—The business association, partnership, reinstatement of export privileges one United States Government shall not society, trust, or any other entity, year after the date of the debarment, in procure, or enter into any contract for organization or group, including accordance with the AECA, 22 U.S.C. the Procurement of, any goods or governmental entities. The ITAR, 2778(g)(4)(A), and the ITAR, section services from the sanctioned persons; specifically § 126.7(e), defines the term 127.7. A reinstatement request is made and ‘‘party to the export’’ to include the to the Director of the Office of Defense (B) Import Sanction.—The president, the chief executive officer, Trade Controls. Any decision to importation into the United States of and other senior officers and officials of reinstate export privileges can be made products produced by the sanctioned the license applicant; the freight only after the statutory requirements persons shall be prohibited. forwarders or designated exporting under section 38(g)(4) of the AECA have These sanctions apply not only to the agent of the license applicant; and any been satisfied through a process companies described above, but also to consignee or end-user of any item to be administered by the Office of Defense their divisions, subunits, and any exported. The statute permits certain Trade Controls. If reinstatement is successor—entities. Questions as to limited exceptions to this prohibition to granted, the debarment will be whether a particular transaction is be made on a case-by-case basis. 22 suspended. affected by the sanctions should be U.S.C. 2778(g)(4). Pursuant to the AECA, 22 U.S.C. referred to the contract listed above. The The ITAR, section 127.7, authorizes 2778(g)(4)(A), and the ITAR, 22 CFR sanctions shall commence on May 18, the Assistant Secretary of State for 127.7, the Assistant Secretary for 1995. They will remain in place for at Political-Military Affairs to prohibit Political-Military Affairs has statutorily least one year and until further notice. certain persons convicted of violating, debarred twelve persons who have been These measures shall be implemented or conspiring to violate, the AECA, from convicted of conspiring to violate or by the responsible agencies as provided participating directly or indirectly in the violating the AECA. in Executive Order 12851 of June 11, export of defense articles or in the These persons have been debarred for 1993. furnishing of defense services for which a three-year period following the date of Dated: May 19, 1995. a license or approval is required. Such their conviction, and have been so a prohibition is referred to as a Eric D. Newsom, notified by a letter from the Office of ‘‘statutory debarment,’’ which may be Defense Trade Controls. Pursuant to Acting Assistant Secretary of State for imposed on the basis of judicial Political-Military Affairs. ITAR, section 127.7(c), the names of proceedings that resulted in a these persons, their offense, date(s) of [FR Doc. 95–13836 Filed 6–6–95; 8:45 am] conviction for violating, or of conspiring conviction and court(s) of conviction are BILLING CODE 4710±25±M to violate, the AECA. See 22 CFR hereby being published in the Federal 127.7(c). The period for debarment will Register. Anyone who requires normally be three years from the date of Office of Defense Trade Controls additional information to determine conviction. At the end of the debarment whether a person has been debarred [Public Notice 2216] period, licensing privileges may be should contact the Office of Defense reinstated at the request of the debarred Trade Controls. Statutory Debarment Under the person following the necessary This notice involves a foreign affairs International Traffic in Arms interagency consultations, after a function of the United States Regulations thorough review of the circumstances encompassed within the meaning of the surrounding the conviction, and a AGENCY: Office of Defense Trade military and foreign affairs exclusion of finding that appropriate steps have been Controls, Department of State. the Administrative Procedure Act. taken to mitigate any law enforcement ACTION: Notice. Because the exercise of this foreign concerns, as required by the AECA, 22 affairs function is discretionary, it is SUMMARY: Notice is hereby given of U.S.C. 2778(g)(4). excluded from review under the which persons have been statutorily Statutory debarment is based solely Administrative Procedure Act. debarred pursuant to § 127.7(c) of the upon a conviction in a criminal In accordance with these authorities International Traffic in Arms proceeding, conducted by a United the following persons are debarred for a Regulations (ITAR) (22 CFR Parts 120– States court. Thus, the administrative period of three years following their 130). debarment procedures, as outlined in conviction for conspiring to violate or the ITAR, 22 CFR part 128, are not EFFECTIVE DATE: June 7, 1995. violating the AECA (name/address/ applicable in such cases. offense/conviction date/court citation): FOR FURTHER INFORMATION CONTACT: The Department of State will not Philip S. Rhoads, Chief, Compliance consider applications for licenses or 1. Paul LaVista, 2520 Olive Springs Rd., Enforcement Branch, Office of Defense requests for approvals that involve any Marietta, GA 30060, 22 U.S.C. § 2778 (violating the AECA), September 25, 1992, Trade Controls, Department of State person or any party to the export who (703–875–6650). United States v. Paul LaVista, U.S. District has been convicted of violating, or of Court, Western District of Washington, SUPPLEMENTARY INFORMATION: Section conspiring to violate, the AECA during Criminal Docket No. CR92–346C. 38(g)(4)(A) of the Arms Export Control the period of statutory debarment. 2. Satish Shah, 46 Glynn Court, Parlin, NJ Act (AECA), 22 U.S.C. 2778, prohibits Persons who have been statutorily 08859, 18 U.S.C. § 371 (conspiracy to violate licenses or other approvals for the debarred may appeal to the Under 22 U.S.C. § 2778), May 10, 1993, United export of defense articles and defense Secretary for International Security States v. Tzvi Rosenfeld, et al., U.S. District services to be issued to a person, or any Affairs for reconsideration of the Court, Middle District of Tennessee, Criminal party to the export, who has been ineligibility determination. A request for Docket No. 3:91–00163–04. convicted of violating certain U.S. 3. Menachim Rosenfeld, c/o Lionel Lufton, reconsideration must be submitted in 174 East Bay Street, Suite 302, Charleston, SC criminal statutes, including the AECA. writing within 30 days after a person 29402, 18 U.S.C. § 371 (conspiracy to violate The term ‘‘person’’, as defined in 22 has been informed of the adverse 22 U.S.C. § 2778), August 23, 1993, United CFR 120.14 of the International Traffic decision. 22 CFR 127.7(d). States v. Tzvi Rosenfeld, et al., U.S. District in Arms Regulations (ITAR), means a The Department of State policy Court, Middle District of Tennessee, Criminal natural person as well as a corporation, permits debarred persons to apply for Docket No. 3:91–00163–01. 30150 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 4. Mohd A.M. Anwahi, 295 West Wyoming [Public Notice 2207] defendants conspired to conceal a Ave., Stoneham, MA 02180, 22 U.S.C. § 2778 scheme to sell and export zirconium (violating the AECA), September 28, 1993, Office of Defense Trade Controls; compacts to Greece, for reexport to United States v. Mohd A.M. Anwahi, U.S. Munitions Exports Involving Teledyne Jordan, without having first obtained the District Court, District of Colorado, Criminal Wah Chang Albany, Extraco Ltd., Weco U.S. Department of State requisite Docket No. 93–CR–132. Industrial Products Export GmbH, authorization. (United States v. 5. Willem Louw, 26 Andre Ave., President Edward Johnson, Christian Teledyne Industries, Inc., d/b/a Ridge, Randburg, South Africa, 22 U.S.C. Demesmaeker, and International Teledyne Wah Chang Albany, et al., § 2778 (violating the AECA), October 18, Commerce Promotion S.P.R.L. U.S. District Court for the District of 1993, United States v. Tzvi Rosenfeld, et al., AGENCY: Department of State. Columbia, Criminal Docket No. 94–286). U.S. District Court, Middle District of ACTION: Notice. Effective July 13, 1994, the Tennessee, Criminal Docket No. 3:91–00163– Department of State suspended all 02. SUMMARY: Notice is hereby given that all licenses and other written approvals 6. Ronald Hendron, 1029 Olive Way, Palm existing license and other approvals, (including all activities under Springs, CA 92262, 18 U.S.C. § 371 granted pursuant to section 38 of the manufacturing license and technical (conspiring to violate 22 U.S.C. § 2778) and Arms Export Control Act, that authorize assistance agreements) concerning 22 U.S.C. § 2778 (violating the AECA), April the export or transfer by, for or to, exports of defense articles and provision 18, 1994, United States v. Ronald Hendron, TELEDYNE INDUSTRIES, INC., D/B/A of defense services by, for or to the U.S. District Court, Eastern District of New TELEDYNE WAH CHANG ALBANY, defendants and any of their subsidiaries York, Criminal Docket No. CR–92–424(S–2). EXTRACO LTD., WECO INDUSTRIAL or associated companies. Furthermore, 7. Aziz Muthana, 4856 N. Ridgeway, 3rd PRODUCTS EXPORT GMBH, EDWARD the Department precluded the use in Floor, Chicago, IL 60625, 22 U.S.C. § 2778 JOHNSON, CHRISTIAN connection with the defendants of any (violating the AECA), April 20, 1994, United DEMESMAEKER, AND exemptions from license or other States v. Aziz Muthana, U.S. District Court, INTERNATIONAL COMMERCE approval included in the ITAR. Northern District of Illinois, Criminal Docket PROMOTION S.P.R.L., and any of their This action has been taken pursuant No. 93–CR–580. subsidiaries or associated companies, of to sections 38 and 42 of the Arms Export 8. Louis Clarence Thomasset, 24 Rue de la defense articles or defense services are Control Act (AECA) (22 U.S.C. 2778 & Croix, Echampen, France 77440, 22 U.S.C. suspended effective July 13, 1994. In 2791) and 22 CFR 126.7(a)(2) and § 2778 (violating the AECA), May 16, 1994, addition, it shall be the policy of the 126.7(a)(3) of the ITAR. It will remain in United States v. Louis Clarence Thomasset, Department of State to deny all export force until rescinded. U.S. District Court, Southern District of license applications and other requests Exceptions may be made to this Texas, Criminal Docket No. H–94–15. for approval involving, directly or policy on a case-by-case basis at the 9. Manfred Felber, 1150 John Street, 13–15, indirectly, the above cited entities. This discretion of the Office of Defense Trade Vienna, Austria, 22 U.S.C. § 2778 (violating action also precludes the use in Controls. However, such an exception the AECA), June 6, 1994, United States v. connection with such entities of any would be granted only after a full Manfred Felber, U.S. District Court, District exemptions from license or other review of all circumstances, paying of Oregon, Criminal Docket No. CR–94– approvals included in the International particular attention to the following 60044. Traffic in Arms Regulations (ITAR) (22 factors: whether an exception is 10. Joseph D’Addezio, 133 Greenmeadow CFR Parts 120–130). warranted by overriding foreign policy Dr., Deer Park, NY 11729, 18 U.S.C. § 371 EFFECTIVE DATE: December 12, 1994. or national security interests; whether (conspiracy to violate 22 U.S.C. 2778), July FOR FURTHER INFORMATION CONTACT: an exception would further law 20, 1994, United States v. Joseph D’Addezio, Mary F. Sweeney, Acting Chief, enforcement concerns; and whether U.S. District Court, Southern District of New Compliance and Enforcement Branch, other compelling circumstances exist York, Criminal Docket No. 90–CR–810. Office of Defense Trade Controls, which are consistent with foreign policy 11. Oskar Benevidez Vann, 919 Santa Bureau of Political-Military Affairs, or national security interests of the Maria, Laredo, TX 78040–2745, 18 U.S.C. Department of State (703–875–6650). United States, and which do not conflict § 371 (conspiring to violate 22 U.S.C. § 2778), SUPPLEMENTARY INFORMATION: A four (4) with law enforcement concerns. September 23, 1994, United States v. Oskar count indictment was returned on July A person named in an indictment for Benevidez Vann, et al., U.S. District Court, 13, 1994, in the U.S. District Court for an AECA-related violation may submit a Western District of Louisiana, Criminal the District of Columbia, charging written request for reconsideration of Docket No. CR–93–60012–01. TELEDYNE INDUSTRIES, INC., D/B/A the suspension/denial decision to the 12. Rexon Technology Corp., 70 Old TELEDYNE WAH CHANG ALBANY office of Defense Trade Controls. Such Turnpike Road, Wayne, NJ 07470, 22 U.S.C. (TWCA), Oregon; EXTRACO LTD, request for reconsideration should be § 2778 (violating the AECA), February 22, Athens Greece; WECO INDUSTRIAL supported by evidence of remedial 1995, United States v. Rexon Technology PRODUCTS EXPORT GMBH, Germany measures taken to prevent future Corp., et al., U.S. District Court, District of and Belgium; EDWARD JOHNSON violations of the AECA and/or the ITAR New Jersey, Criminal Docket No. 93–610. (employee of TWCA); CHRISTIAN and other pertinent documented Dated: May 19, 1995. DEMESMAEKER (employee of Weco information showing that the person Industrial Products Export GmbH); and would not be a risk for future violations William J. Lowell, INTERNATIONAL COMMERCE of the AECA and/or the ITAR. The Director, Office of Defense Trade Controls, PROMOTION S.P.R.L., Belgium; with Office of Defense Trade Controls will Bureau of Political-Military Affairs, conspiracy (18 U.S.C. 371) to violate evaluate the submission in consultation Department of State. and violation of section 38 of the Arms with the Department of Treasury, [FR Doc. 95–13833 Filed 6–6–95; 8:45 am] Export Control Act (AECA) (22 U.S.C. Justice, and other necessary agencies. 2778) and its implementing regulations, After a decision on the request for BILLING CODE 4710±25±M the International Traffic in Arms reconsideration has been rendered by Regulations (ITAR) (22 CFR Parts 120– the Assistant Secretary for Political- 130). The indictment charges that the Military Affairs, the requester will be Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30151 notified whether the exception has been without having first obtained the U.S. convenience and necessity to engage in granted. Department of State requisite interstate and foreign charter passenger Dated: December 12, 1994. authorization. On July 13, 1994, an air transportation. Thomas E. McNamara, indictment was returned in the U.S. DATES: Persons wishing to file District Court for the District of Assistant Secretary, Bureau of Political- objections should do so no later than Military Affairs, U.S. Department of State. Columbia charging Teledyne Industries, June 19, 1995. [FR Doc. 95–13835 Filed 6–6–95; 8:45 am] Inc., d/b/a Teledyne Wah Chang Albany ADDRESSES: Objections and answers to with one count of conspiracy (18 U.S.C. BILLING CODE 4710±25±M objections should be filed in Dockets 371) to violate section 38 of the AECA 50228 and 50229 and addressed to the and the ITAR, and one substantive Documentary Services Division (C–55, [Public Notice 2206] count of violating the AECA and the room PL–401), U.S. Department of ITAR. The indictment charged that the Office of Defense Trade Controls; Transportation, 400 Seventh Street SW., defendants conspired to conceal a Washington, DC 20590 and should be Rescission of Suspended Exports scheme to sell and export zirconium Regarding Teledyne Wah Chang served upon the parties listed in compacts to Greece, for reexport to Attachment A to the order. Albany Jordan, without having first obtained the FOR FURTHER INFORMATION CONTACT: Mr. AGENCY: Department of State. U.S. Department of State requisite James A. Lawyer, Air Carrier Fitness ACTION: Notice. authorization. Division (X–56, Room 6401), U.S. On January 26, 1995 in the U.S. Department of Transportation, 400 SUMMARY: District Court for the Southern District Notice is hereby given that Seventh Street SW., Washington, DC Public Notice 1871, effective July 26, of Florida, Teledyne Industries, Inc., d/ 20590, (202) 366–1064. 1993, suspending all existing licenses b/a Teledyne Wah Chang Albany Dated: June 2, 1995. and other approvals, granted by the entered a guilty plea to conspiring to Patrick V. Murphy, Department of State pursuant to section violate and violating the AECA. On 38 of the Arms Export Control Act January 27, 1995 in the U.S. District Acting Assistant Secretary for Aviation and International Affairs. (‘‘AECA’’), that authorized the export or Court for the District of Columbia, they transfer of defense articles or defense entered a guilty plea of violating the [FR Doc. 95–13952 Filed 6–6–95; 8:45 am] services by, for or to, Teledyne Wah AECA. Pursuant to a Consent BILLING CODE 4910±62±P Chang Albany is rescinded. Agreement, between Teledyne EFFECTIVE DATE Industries, Inc., d/b/a Teledyne Wah : January 26, 1995. Federal Aviation Administration FOR FURTHER INFORMATION CONTACT: Chang Albany and the Department of Philip S. Rhoads, Chief Compliance and State, and an Order signed by the Air Traffic Procedures Advisory Enforcement Branch, Office of Defense Assistant Secretary of State for Political- Committee Trade Controls, Bureau of Political- Military Affairs, the Department of Military Affairs, Department of State State’s suspension relating to Teledyne AGENCY: Federal Aviation (703–875–6650). Industries, Inc., d/b/a Teledyne Wah Administration (FAA), DOT. SUPPLEMENTARY INFORMATION: On July Chang Albany imposed on July 26, 1993 ACTION: Notice of meeting. 26, 1993, the Office of Defense Trade (noticed in the September 23, 1993 Federal Register) and a second SUMMARY: The FAA is issuing this notice Controls, Department of State, to advise the public that a meeting of suspended and denied all existing suspension imposed on July 24, 1994, is rescinded, effective January 27, 1995. the Federal Aviation Administration Air licenses and other approvals, granted Traffic Procedures Advisory Committee pursuant to section 38 of the AECA, that Dated: April 27, 1995. (ATPAC) will be held to review present authorized the export or transfer by, for William J. Lowell, air traffic control procedures and or to, Teledyne Wah Chang Albany, and Director, Office of Defense Trade Controls, practices for standardization, any other subsidiaries or associated U.S. Department of State. clarification, and upgrading of companies, of defense articles or [FR Doc. 95–13834 Filed 6–6–95; 8:45 am] terminology and procedures. defense services. That suspension action BILLING CODE 4710±25±M DATES: The meeting will be held from was taken pursuant to section 38 and 40 July 10 through July 13, 1995, from 9 of the AECA (22 U.S.C. 2778 and 2780) a.m. to 5 p.m. each day. and §§ 126.7(a)(2) and 126.7(a)(3) of the DEPARTMENT OF TRANSPORTATION International Traffic in Arms ADDRESSES: The meeting will be held July 10–13 at the Doubletree Club Hotel, Regulations (‘‘ITAR’’) (22 CFR Office of the Secretary 126.7(a)(2) & (3)). 137 Union Boulevard, Lakewood, An indictment was returned, on May [Dockets 50228 and 50229] Colorado. 26, 1993, in the U.S. District Court, FOR FURTHER INFORMATION CONTACT: Applications of Omni Air Express, Inc., Southern District of Florida charging Mr. W. Frank Price, Executive Director, for Issuance of New Certificate Teledyne Wah Chang Albany, with one ATPAC, Air Traffic Rules and Authority count of conspiracy (18 U.S.C. 371) to Procedures, 800 Independence Avenue violate section 38 of the Arms Export AGENCY: Department of Transportation. SW., Washington, DC 20591, telephone (202) 267–3725. Control Act (AECA, 22 U.S.C. 2778) and ACTION: Notice of Order to Show Cause the ITAR (22 CFR Parts 120–130), and (Order 95–6–1). SUPPLEMENTARY INFORMATION: Pursuant three substantive counts of violating the to Section 10(a)(2) of the Federal AECA and the ITAR. The indictment SUMMARY: The Department of Advisory Committee Act (Pub. L. 92– charged that the defendants conspired Transportation is directing all interested 463; 5 U.S.C. App. 2), notice is hereby to conceal a scheme to illegally export persons to show cause why it should given of a meeting of the ATPAC to be United States origin ordnance-grade not issue an order (1) Finding Omni Air held from July 10 through July 13, 1995, zirconium to Chile, for use in cluster Express, Inc., fit, willing, and able, and at the Doubletree Club Hotel, 137 Union bombs and other munitions for Iraq, (2) awarding it certificates of public Boulevard, Lakewood, Colorado. 30152 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices The agenda for this meeting will Advisory Committee Act (Pub. L. 92– (3) Consider and Approve: a. cover: a continuation of the Committee’s 463; 5 U.S.C. app. II), notice is hereby Proposed Change No. 1 to DO–213, review of present air traffic control given of a meeting to solicit information Minimum Operational Performance procedures and practices for from the aviation maintenance Standards for Nose-Mounted Radomes standardization, clarification, and community concerning maintenance, (RTCA Paper 299–95/TMC–172, upgrading of terminology and preventive maintenance, rebuilding and previously distributed) prepared by SC– procedures. It will also include: alteration, and inspection of certain 173; b. Proposed Change No. 1 to DO– 1. Approval of Minutes. aircraft. The information is requested to 220, Minimum Operational Performance 2. Submission of Discussion of Areas assist the Aviation Rulemaking Standards for Airborne Weather Radar of Concern. Advisory Committee in its deliberations with Forward-Looking Windshear 3. Discussion of Potential Safety with regard to a task assigned to ARAC Capability (RTCA Paper No. 303–95/ Items. by the Federal Aviation Administration. TMC–174, previously distributed) 4. Report from Executive Director. Specifically, the task is as follows: prepared by SC–173; c. Proposed Final 5. Items of Interest. Draft, Minimum Operational 6. Discussion and agreement of Review Title 14 Code of Federal Regulations, parts 43 and 91, and supporting Performance Standards for Lithium location and dates for subsequent policy and guidance material for the purpose Batteries (RTCA Paper No. 290–95/ meetings. of determining the course of action to be TMC–171, previously distributed; Attendance is open to the interested taken for rulemaking and/or policy relative to (4) Consider reports on: a. Actions public but limited to the space the issue of general aviation aircraft directed by the TMC concerning the available. With the approval of the inspection and maintenance, specifically proposed final draft document Chairperson, members of the public may section 91.409, part 43, and Appendices A previously approved by the TMC when present oral statements at the meeting. and D of part 43. In your review, consider submitted as the MLS MOPS, b. Persons desiring to attend and persons any inspection and maintenance initiatives Response from the FAA concerning desiring to present oral statements underway throughout the aviation industry affecting general aviation with a maximum comment and recommendations on the should notify the person listed above certificated takeoff weight of 12,500 pounds proposed work relating to cockpit not later than July 7, 1995. The next or less. Also consider ongoing initiatives in moving map displays; quarterly meeting of the FAA ATPAC is the areas of: maintenance recordkeeping; (5) Develop and formalize the Special planned to be held from October 23–26, research and development; the age of the Committee Work Program; 1995, in Washington, DC. Any member current aircraft fleet; harmonization; the true (6) Other Business; of the public may present a written cost of inspection versus maintenance; and (7) Date and Place of Next Meeting. statement to the Committee at any time changes in technology. Attendance is open to the interested public but limited to space availability. at the address given above. Attendance is open to the interested With the approval of the chairman, Issued in Washington, DC, on June 1, 1995. public but may be limited to the space members of the public may present oral W. Frank Price, available. In addition, sign and oral statements at the meeting. Persons Executive Director, Air Traffic Procedures interpretation can be made available at wishing to present statements or obtain Advisory Committee. the meeting, as well as an assistive information, should contact the RTCA [FR Doc. 95–13946 Filed 6–6–95; 8:45 am] listening device, if requested 10 Secretariat, 1140 Connecticut Avenue, calendar days before the meeting is BILLING CODE 4910±13±M NW., suite 1020, Washington, DC 20036; held. Arrangements may be made by (202) 833–9339 (phone) or (202) 833– contacting the meeting coordinator 9434 (fax). Members of the public may Aviation Rulemaking Advisory listed under the heading FOR FURTHER present a written statement to the Committee Meetings INFORMATION CONTACT. committee at any time. AGENCY: Federal Aviation Issued in Washington, DC, on May 31, 1995. Issued in Washington, DC, on May 30, Administration (FAA), DOT. 1995. Frederick J. Leonelli, ACTION: Notice of meeting. Janice L. Peters, Assistant Executive Director, Air Carrier/ Designated Official. SUMMARY: This notice announces a General Aviation Maintenance Issues, meeting to solicit information from the Aviation Rulemaking Advisory Committee. [FR Doc. 95–13938 Filed 6–6–95; 8:45 am] aviation maintenance community [FR Doc. 95–13942 Filed 6–6–95; 8:45 am] BILLING CODE 4810±13±M concerning maintenance, preventive BILLING CODE 4910±13±M maintenance, rebuilding and alteration, Notice of Intent to Rule on Application and inspection of certain aircraft. The To Impose and Use the Revenue from information is requested to assist the RTCA, Inc.; Technical Management Committee a Passenger Facility Charge (PFC) at Aviation Rulemaking Advisory Florence Regional Airport, Florence, Committee (ARAC) in its deliberations. Pursuant to section 10(a)(2) of the SC DATES: The meeting will be held on June Federal Advisory Committee Act (Pub. AGENCY: Federal Aviation 21, 1995, beginning at 7 p.m. L. 92–463, 5 U.S.C., Appendix 2), notice Administration (FAA), DOT. ADDRESSES: The meeting will be held at is hereby given for the RTCA Technical ACTION: the Adams Mark Hotel, St. Louis, Management Committee meeting to be Notice of Intent to Rule on Missouri. held June 23, 1995, starting at 9 a.m. Application. FOR FURTHER INFORMATION CONTACT: Ms. The meeting will be held at RTCA, Inc., SUMMARY: The FAA proposes to rule and Christine Leonard, Professional 1140 Connecticut Avenue, NW., suite invites public comment on the Aviation Maintenance Association, 1008 1020, Washington, DC, 20036. application to impose and use the Russell Lane, West Chester, PA 19382; The agenda will include: revenue from a PFC at Florence telephone (610) 399–1744. (1) Chairman’s Remarks; Regional Airport under the provisions of SUPPLEMENTARY INFORMATION: Pursuant (2) Review and Approve Summary of the Aviation Safety and Capacity to section 10(a)(2) of the Federal April 23, Meeting; Expansion Act of 1990 (Title IX of the Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30153 Omnibus Budget Reconciliation Act of apron; abbreviated airport master plan SUPPLEMENTARY INFORMATION: By letters 1990) (Pub. L. 101–508) and Part 158 of update; terminal expansion and dated March 19 and May 3, 1975, the Federal Aviation Regulations (14 renovation; airfield signs and pavement Alyeska requested a waiver from CFR Part 158). marking; taxiway edge lighting and compliance with the coating and DATES: Comments must be received on precision approach path indicator; cathodic protection requirements of 49 or before July 7, 1995. expansion of the airport access road. CFR 195.238(a)(5) and 195.242(a) with ADDRESSES: Comments on this Class or classes of air carriers which respect to thermally insulated mainline application may be mailed or delivered the public agency has requested not be piping on the Trans-Alaska Pipeline in triplicate to the FAA at the following required to collect PFCs: Air carriers System (TAPS). 49 CFR 195.238(a)(5) address: Atlanta Airports District Office, operating under Federal Aviation requires that each component in a Campus Building, 1701 Columbia Ave., Regulation Part 135 or Part 298 on an hazardous liquid pipeline that is to be suite 2–260, College Park, GA 30337– on-demand, non-scheduled basis, and buried or submerged must have an 2747. not selling tickets to individual external protective coating that supports In addition, one copy of any passengers. any supplemental cathodic protection. comments submitted to the FAA must Any person may inspect the In addition, if an insulating-type coating be mailed or delivered to Mr. Harvey application in person at the FAA office is used, it must have low moisture Senseney, Executive Director of the listed above under FOR FURTHER absorption and provide high electrical Florence City-County Airport INFORMATION CONTACT. In addition, any resistance. 49 CFR 195.242(a) requires a Commission at the following address: person may, upon request, inspect the cathodic protection system be installed 2100 Terminal Drive, Florence, SC application, notice and other documents for all buried or submerged hazardous 29506. germane to the application in person at liquid facilities to mitigate corrosion Air carriers and foreign air carriers the Florence City-County Airport that might result in a structural failure. may submit copies of written comments Commission. A test procedure must be developed to previously provided to the Florence Issued in Atlanta, Georgia on May 31, determine whether adequate cathodic City-County Airport Commission under 1995. protection has been achieved. The affected areas were specified as section 158.23 of Part 158. Dell T. Jernigan, (1) three special buried, refrigerated FOR FURTHER INFORMATION CONTACT: Manager, Atlanta Airports District Office, Southern Region. sections totaling 4.3 miles, (2) Ms. Cathy Nelmes, Program Manager, approximately 240 short buried Atlanta Airports District Office, Campus [FR Doc. 95–13945 Filed 6–6–95; 8:45 am] transitions sections, each approximately Building, 1701 Columbia Ave., suite 2– BILLING CODE 4910±13±M 60–80 feet, and (3) approximately 20 260, College Park, GA 30337–2747, buried ‘‘sag bend’’ sections each (404) 305–7148. The application may be Research and Special Programs approximately 120 feet long. reviewed in person at this same On May 19, 1975, RSPA granted Administration location. Alyeska the requested waiver (Docket SUPPLEMENTARY INFORMATION: The FAA [Docket No. P±94±2W; Notice 1] No. Pet. 75–41). The waiver was granted proposes to rule and invites public on the premise that the applied thermal comment on the application to impose Transportation of Hazardous Liquid by insulation design would mitigate and use the revenue from a PFC at Pipeline Petition for Waiver; Alyeska corrosion from occurring under Florence Regional Airport under the Pipeline Service Company insulation. Although the thermal provisions of the Aviation Safety and SUMMARY: Alyeska Pipeline Service insulation design has been generally Capacity Expansion Act of 1990 (Title Company (Alyeska) has petitioned the effective on the buried insulated IX of the Omnibus Budget Research and Special Programs mainline piping in preventing thawing Reconciliation Act of 1990) (Pub. L. Administration (RSPA) for an of the permafrost and external corrosion 101–508) and Part 158 of the Federal amendment to the May 19, 1975, waiver that requires repair based on structural Aviation Regulations (14 CFR Part 158). from compliance with the coating and analysis of the pipe using methods On May 31, 1995, the FAA cathodic protection requirements of 49 prescribed by 49 CFR 195.416(h), the determined that the application to CFR 195.238(a)(5) and 195.242(a) design has not prevented all corrosion impose and use the revenue from a PFC regarding buried mainline insulated from occurring. During routine internal inspection submitted by Florence City-County piping. RSPA proposes to grant the tool corrosion surveys, Alyeska reported Airport Commission was substantially amendment with the noted stipulations. complete within the requirements of evidence of corrosion on 300 of 1850 DATES: § 158.25 of Part 158. The FAA will Comments must be submitted on approximately 40 foot long pipe joints approve or disapprove the application, or before July 24, 1995. covered by the waiver (16 percent). in whole or in part, no later than August FOR FURTHER INFORMATION CONTACT: L.E. Alyeska reported this corrosion to OPS 5, 1995. The following is a brief Herrick, 202–366–5523 regarding the on September 2, 1994 by letter. To date, overview of the application. subject matter of this notice or the all fifteen joints that have been Level of the proposed PFC: $3.00. Dockets Unit, 202–366–5046, regarding excavated have been found to have non- Proposed charge effective date: copies of this notice or other material injurious corrosion. December 1, 1995. that is referenced herein. Accordingly, RSPA proposes to Proposed charge expiration date: ADDRESSES: Comments may be mailed to amend the May 1975 waiver prohibiting October 31, 1999. the Dockets Branch, U.S. Department of further installations on TAPS of buried Total estimated PFC revenue: Transportation, 400 Seventh Street SW., mainline piping coated with thermal $881,600. Washington, DC, 20590. All comments insulation not meeting all coating and Brief description of proposed and Docket material may be reviewed in cathodic protection requirements of CFR project(s): Runway identification the Dockets Branch, room 8421, 195.238(a)(5) and 195.242(a). lighting; rehabilitation of medium between the hours of 8:30 a.m. to 5:00 RSPA further proposes to allow intensity runway lights for runway 18/ p.m. Monday through Friday, except Alyeska to continue under the May 1975 36; storm water drainage and terminal federal holidays. waiver regarding coating and cathodic 30154 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices protection requirements of 49 CFR previously identified as being corroded. [Docket No. P±95±1W; Notice 1] 195.238(a)(5) and 195.242(a) for existing Results will be used to evaluate the insulated piping addressed by the ability of internal inspection tools used Transportation of Hazardous Liquid by Pipeline Petition for Waiver; Alyeska waiver, subject to the following on the TAPS to reliably and repeatedly Pipeline Service Company amendments: detect, measure and assess corrosion 1. Alyeska will continue to inspect all that may impact structural integrity. SUMMARY: Alyeska Pipeline Service thermally insulated mainline pipe by a Results of this study may also be used Company (Alyeska) has petitioned the program of annual internal inspection to provide the most desirable location to Research and Special Programs tool corrosion surveys capable of do at least one investigation of the Administration (RSPA) for an detecting and assessing potentially corrosion mechanism described in item amendment to the August 16, 1975, injurious corrosion. RSPA’s Office of 3B below. waiver (Docket No. Pet. 75–13W) from Pipeline Safety (OPS) and Alyeska compliance with the coating and concur that Alyeska should conduct the B. A completed analysis of cathodic protection requirements of 49 next internal inspection tool corrosion mechanisms of corrosion under CFR 195.238(a)(5) and 195.242(a) survey during the spring of 1996, a insulation to determine if the observed regarding buried pump station and period of approximately 18 months from corrosion is active or dormant will be terminal insulated piping. RSPA the previous survey. This one-time completed. This study will include proposes to grant this amendment deviation from an annual schedule is review of internal inspection tool subject to the noted stipulations. required to place the timing of internal corrosion survey data, field observations DATES: Comments must be submitted on inspection tool corrosion surveys in the from at least one dig and laboratory or before July 24, 1995. early spring of the year. testing to confirm corrosion FOR FURTHER INFORMATION CONTACT: L.E. Running the survey in the spring of mechanisms. Field testing may include Herrick, 202–366–5523 regarding the 1996 will minimize the adverse affects the installation of corrosion monitoring subject matter of this notice or the of wax precipitation on data quality, devices such as electrical resistance Dockets Branch, 202–366–5046, which would be encountered if a probes or corrosion rate coupons. regarding copies of this notice or other summer or fall 1995 survey were material that is referenced herein. conducted and will avoid the serious C. No later than December 1, 1996, a weather constraints of a survey taking completed feasibility study of ADDRESSES: Comments may be mailed to place during the 1995/1996 winter. remediation designs and options to be the Dockets Branch, U.S. Department of Running the survey in the spring of used for the effective control of Transportation, 400 Seventh Street, 1996 will permit the completion of corrosion under mainline insulated Washington, DC 20590. All comments scheduled improvements to the piping. The feasibility study will and Docket material may be reviewed in the Dockets Branch, room 8421, corrosion inspection tool. Running the consider corrosion mechanisms between the hours of 8:30 a.m. to 5:00 survey in the spring of 1996 will also determined previously. A schedule will p.m. Monday through Friday, except allow full evaluation of that data with be provided so that OPS will have the federal holidays. data from the survey conducted during opportunity to witness the internal SUPPLEMENTARY INFORMATION: By letter the summer/fall of 1994. inspection tool corrosion survey Subsequent internal inspection tool dated November 24, 1975, Alyeska evaluation and installation of any requested a waiver from compliance surveys will continue to be conducted remedial corrective systems. annually until OPS determines from the with the coating and cathodic protection technical data presented by Alyeska that Interested parties are invited to requirements of 49 CFR 195.238(a)(5) a reduced monitoring frequency is comment on the proposed amendment and 195.242(a) with respect to thermally justified. to waiver by submitting in duplicate insulated pump station and terminal 2. If evaluation of the internal such data, views, or arguments as they piping on the Trans-Alaska Pipeline inspection tool corrosion survey data may desire. RSPA specifically requests System (TAPS). 49 CFR 195.238(a)(5) indicates areas of potentially injurious comments on the adequacy of the requires that each component in a corrosion: proposed action regarding 195.238(a)(5) hazardous liquid pipeline that is to be A. An excavation and evaluation of and 195.242(a). Comments should buried or submerged must have an actual corrosion found shall be made in identify the Docket and Notice numbers, external protective coating that supports accordance with 49 CFR 195.416(h) to and be submitted to the Dockets Unit. any supplemental cathodic protection. determine if structural repairs are In addition, if an insulating-type coating All comments received before July 24, necessary. is used, it must have low moisture B. Structural repairs, if required shall 1995 will be considered before final absorption and provide high electrical be made in accordance with action is taken. Late filed comments will resistance. 49 CFR 195.242(a) requires a requirements of ASME B31.4 and be considered so far as practicable. No cathodic protection system be installed Alyeska’s Maintenance and Repair public hearing is contemplated, but one for all buried or submerged hazardous Manual (MR–48). may be held at a time and place set in liquid facilities to mitigate corrosion C. Recoating and cathodic protection a Notice in the Federal Register if that might result in structural failure. A of excavated piping will be applied in requested by an interested person test procedure must also be developed accordance with the requirements of 49 desiring to comment at a public hearing to determine whether adequate cathodic CFR 195.238(a)(5) and 195.242(a). and raising a genuine issue. protection has been achieved. 3. Alyeska will submit to OPS the On August 16, 1976, RSPA granted Issued in Washington, DC on June 1, 1995. following engineering studies, which Alyeska this waiver (Docket No. Pet. 75– may provide the technical basis for Cesar De Leon, 13W) on the premise that the applied future modification of this proposed Acting Associate Administrator for Pipeline thermal insulation design would waiver. Safety. prevent corrosion from occurring on the A. A detailed study of all insulated [FR Doc. 95–13930 Filed 6–6–95; 8:45 am] piping. However, subsequent joints with identified corrosion BILLING CODE 4910±60±P inspections of the insulated piping including a comparison with joints discovered that the annular insulation Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices 30155 system was not sufficiently effective in extension is approximately 560 feet this amendment and extension is preventing external corrosion on between the 48-inch mainline and the approximately 800 feet. portions of the buried piping. meter building. At the North Pole Meter For the purpose of this amendment Alyeska estimates 14,500 linear feet of Station Alyeska will either: sample inspect/sample inspection piping was originally installed subject A. Provide cathodic protection to means to excavate and expose a portion to the 1976 waiver. To date, Alyeska has existing 8-inch crude supply and 6-inch of a line segment, typically 3 feet to 20 rerouted approximately 11,000 linear residuum return piping by December 31, feet in length, for the purpose of visual feet of above ground piping or installed 1996, and conduct sample inspections examination and measurement of cathodic protection with a design for corrosion in 1995, or corrosion. Portions of pipe segments meeting the requirements of B. Upgrade the meter station with no inspection information will be 195.238(a)(5) and 195.2424(a). In connection and replace with new larger given priority, and reinspection general, this rerouting or repair was diameter piping meeting 49 CFR Part frequency will be based upon the made on areas with the greatest 195 requirements by December 31, 1996. severity of corrosion found, line service, corrosion. For the remaining 5. At transition piping at pump and pipe accessibility. The maximum approximately 3500 feet of below stations and Valdez Marine Terminal interval for sample inspection will not ground insulated piping, RSPA (VMT), the above ground insulated exceed 5 years. proposes to prohibit any further use of piping that transitions to below ground thermal insulation design installed Injurious corrosion means corrosion non-insulated piping occurs at the seven to the extent that replacement or repair during construction and to amend the non-permafrost stations (pump station waiver on the existing insulated piping is required as determined by 49 CFR No. 4 and Nos. 7–12) and the VMT. 195.416(h). Repair means structural subject to the following stipulations: 1. Typical repair consists of removal of the At Pump Station No. 1. In 1995, Alyeska repair of piping and/or coating repairs. below ground insulation and coating, Interested parties are invited to will install an insulated box containing followed by coating replacement and an cathodic protection on approximately comment on the proposed amendment outer mechanical protective layer. to waiver by submitting in duplicate 450 feet of 48-inch mainline piping and Alyeska will repair and complete will also complete tie-in of the 2-inch such data, views, or arguments as they inspections of ten percent of the may desire. RSPA specifically requests fuel gas separator drain line. This will insulated transitions at each of the complete the installation of cathodic comments on the adequacy of the applicable pump stations and at VMT proposed action regarding 195.238(a)(5) protection to all active piping at Pump by the end of 1995. Station No. 1 that is subject to 49 CFR and 195.242(a). Comments should Inspections of ten percent of the 195. identify the Docket and Notice numbers, 2. At Pump Station No. 2. Alyeska transitions were completed at each of and be submitted to the Dockets Unit, will conduct annual sample inspections the pump stations 4, 9, and 12 in 1994 Room 8421, Research and Special of approximately 220 feet of piping for with the following results: PS–4, two Programs Administration, 400 Seventh injurious corrosion and repair as transitions inspected with no corrosion; Street, SW, Washington, D.C. 20590. PS–9, three transitions inspected, two required until pump station No. 2 is All comments received before July 24, with no corrosion and one with slight removed from service. 1995 will be considered before final corrosion with a 65 mil pit; and PS–12, 3. Pump Station No. 5 piping subject action is taken. Late filed comments will three transitions inspected with no to this amendment is approximately be considered as practicable. No public corrosion at two locations and less than 1490 feet. At Pump Station No. 5 hearing is contemplated, but one may be 30 mils pitting at the other location. A Alyeska will either: held at a time and place set in a Notice total of five transitions were inspected A. Install insulated boxes containing in the Federal Register if requested by at the VMT in 1994, a total of five per cathodic protection or move the piping an interested person desiring to cent, with no corrosion found at any above ground by December 31, 1996; or, comment at a public hearing and raising location. B. If Alyeska determines by a genuine issue. September 1995 that Pump Station No. In 1995, Alyeska will conduct 5 will be removed from service prior to inspections of ten percent of the Issued in Washington, D.C. on June 1, December 31, 1999, continue to perform transitions at pump stations Nos. 7,8,10, 1995. annual sample inspections for corrosion and 11 and an additional five transitions Cesar De Leon, and repair as required until Pump at VMT. Alyeska will continue an Acting Associate Administrator for Pipeline Station No. 5 is removed from service. inspection and repair program based Safety. 4. The North Pole Meter Station upon the results of these and future [FR Doc. 95–13931 Filed 6–6–95; 8:45 am] piping subject to this amendment and inspections. Transition piping subject to BILLING CODE 4910±60±P 30156 Sunshine Act Meetings Federal Register Vol. 60, No. 109 Wednesday, June 7, 1995 This section of the FEDERAL REGISTER before this meeting, for a recorded Dated: June 2, 1995. contains notices of meetings published under announcement of bank and bank John J. O’Meara, the ``Government in the Sunshine Act'' (Pub. holding company applications Executive Director (Acting), Federal L. 94-409) 5 U.S.C. 552b(e)(3). scheduled for the meeting. Retirement Thrift Investment Board. Dated: June 2, 1995. [FR Doc. 95–14011 Filed 6–5–95; 9:16 am] BOARD OF GOVERNORS OF THE FEDERAL William W. Wiles, BILLING CODE 6760±01±M RESERVE SYSTEM Secretary of the Board. [FR Doc. 95–14010 Filed 6–5–95; 9:15 am] TIME AND DATE: 11:00 a.m., Monday, June LEGAL SERVICES CORPORATION BILLING CODE 6210±01±M 12, 1995. Board of Directors Meeting Notice; PLACE: William McChesney Martin, Jr. Changes Federal Reserve Board Building, C FEDERAL RETIREMENT THRIFT INVESTMENT Street entrance between 20th and 21st BOARD CITATION OF PREVIOUS ``FEDERAL REGISTER'' NOTICE: Streets, N.W., Washington, D.C. 20551. TIME AND DATE: 10:00 a.m. (EDT), June June 7, 1995. STATUS: Closed. 19, 1995. PREVIOUSLY ANNOUNCED TIME AND DATE: PLACE: 4th Floor, Conference Room, Friday, June 14, 1995, at 12 p.m. MATTERS TO BE CONSIDERED: 1250 H Street, N.W., Washington, D.C. CHANGES IN THE MEETING: The meeting 1. Personnel actions (appointments, STATUS: Open. promotions, assignments, reassignments, and will be held on Wednesday, June 14, salary actions) involving individual Federal MATTERS TO BE CONSIDERED: 1995, at 12 p.m. Research System employees. 1. Approval of the minutes of the May 15, CONTACT PERSON FOR INFORMATION: 2. Any items carried forward from a 1995, Board meeting. Victor M. Fortuno, (202) 336-8810. previously announced meeting. 2. Thrift Savings Plan activity report by the Date issued: June 5, 1995. CONTACT PERSON FOR MORE INFORMATION: Executive Director. Mr. Joseph R. Coyne, Assistant to the 3. Annuity vendor evaluation criteria. Victor M. Fortuno, Board; (202) 452–3204. You may call CONTACT PERSON FOR MORE INFORMATION: General Counsel. (202) 452–3207, beginning at Tom Trabucco, Director, Office of [FR Doc. 95–14078 Filed 6–5–95; 2:26 pm] approximately 5 p.m. two business days External Affairs, (202) 942–1640. BILLING CODE 7050-01-P 30157 Corrections Federal Register Vol. 60, No. 109 Wednesday, June 7, 1995 This section of the FEDERAL REGISTER ‘‘0.50 per head’’ should read ‘‘0.25 per § 1.20 [Corrected] contains editorial corrections of previously head’’ and in the 13th line, ‘‘0.025 per 3. On the same page, in § 1.20(g), in published Presidential, Rule, Proposed Rule, head’’ should read ‘‘0.25 per head’’. the fifth line, ‘‘field’’ should read and Notice documents. These corrections are ‘‘filed’’. prepared by the Office of the Federal BILLING CODE 1505±01±D Register. Agency prepared corrections are § 1.492 [Corrected] issued as signed documents and appear in the appropriate document categories DEPARTMENT OF COMMERCE 4. On page 27939, in § 1.492(a)(5), in elsewhere in the issue. the fourth line, ‘‘Patient’’ should read National Oceanic and Atmospheric ‘‘Patent’’. Administration 5. On the same page, in § 1.492(d), in the fifth line, ‘‘applicant.’’ should read DEPARTMENT OF AGRICULTURE 50 CFR Part 651 ‘‘application.’’. Animal and Plant Health Inspection [Docket No. 950410096±5135±02; I.D. BILLING CODE 1505±01±D Service 050595B] 7 CFR Part 319 RIN 0648±AH66 DEPARTMENT OF TRANSPORTATION [Docket No. 91±074±6] Northeast Multispecies Fishery; Coast Guard Exemption Supplement to Framework RIN 0579±AA47 9 33 CFR Part 165 Importation of Logs, Lumber, and Correction Other Unmanufactured Wood Articles [CGD11-94-007] In rule document 95–12320 beginning RIN 2115-AE84 Correction on page 26841 in the issue of Friday, In rule document 95–12789 beginning May 19, 1995, make the following Regulated Navigation Area; San on page 27665 in the issue of Thursday, corrections: Francisco Bay Region, CA May 25, 1995, make the following § 651.20 [Corrected] corrections: Correction 1. On page 26843, in § 651.20(8)(i), in In rule document 95–8124 beginning § 319.40±6 [Corrected] the third line, insert ‘‘Small Mesh Area on page 16793 in the issue of Monday, 1. On page 27679, in § 319.40–6(b)(2), 1; ’’ after ‘‘in’’. 2. On the same page, in § 651.20(8)(ii), April 3, 1995, make the following in the fourth line, delete ‘‘wholly’’. corrections: 2. On the same page, in § 319.40–6(c), in the third line, insert ‘‘Small Mesh Area 2; and’’ after ‘‘in’’. 1. On page 16793, in the SUMMARY the third line should read ‘‘except section, in the third column, in the places in Asia that are’’. BILLING CODE 1505±01±D eighth line, ‘‘with’’ should read ‘‘will’’. 3. On the same page, in § 319.40–6(c), in the fourth and fifth lines, delete the §165.1114 [Corrected] phrase ‘‘wholly or in part’’. DEPARTMENT OF COMMERCE 2. On page 16797, in the first column, in §165.1114(c)(1)(i), in the first line, BILLING CODE 1505±01±D Patent and Trademark Office the coordinate ‘‘27°47′18″N’’ should read ° ′ ″ 37 CFR Part 1 ‘‘37 47 18 N’’. DEPARTMENT OF AGRICULTURE 3. On the same page, in the same [Docket No. 950501124±5124±01] column, in the same section, in the 11th Animal and Plant Health Inspection line, the coordinate ‘‘27°49′22″N’’ RIN 0651±AA74 Service should read ‘‘37°49′22″N’’. 4. On the same page, in the third 9 CFR Part 130 Revision of Patent and Trademark Fees column, in §165.1114(c)(1)(ii)(F)(4), in [Docket No. 92-174-1] the nineth line, the coordinate Correction ‘‘38°03′23″N’’should read ‘‘38°03′13″N’’. RIN 0579-AA67 In proposed rule document 95–12751 5. On page 16798, in the first column, in §165.1114(c)(1)(ii)(F)(7), in the 10th Import/Export User Fees beginning on page 27934 in the issue of line, the coordinate ‘‘122°21′12″W;’’ Friday, May 26, 1995, make the ° ′ ″ Correction following corrections: should read ‘‘122 22 12 W;’’. 6. On the same page, in the same In proposed rule document 95–12999 1. On page 27935, in the first column, column, in the same paragraph, in the beginning on page 27913 in the issue of under Statutory Provisions, in the 11th line, the coordinate ‘‘37°48′26″N;’’ Friday, May 26, 1995, make the second full paragraph, in the third line, should read ‘‘37°47′26″N;’’. following corrections: ‘‘34 U.S.C.’’ should read ‘‘35 U.S.C.’’. 7. On the same page, in the third §130.7 [Corrected] § 1.19 [Corrected] column, in §165.1114(e)(3)(i)(B)(2), in On page 27921, in §130.7(a), in the 2. On page 27938, in § 1.19(a)(1)(iii), the third line, ‘‘transmit’’ should read third column, in the table, under the in the fifth line, ‘‘consumer’’ should ‘‘transit’’. ‘‘User fee’’ column, in the 7th line, read ‘‘customer’’. BILLING CODE 1505±01±D federal register June 7,1995 Wednesday Rule and ProposalsforContracts;Proposed for GrantsandCooperativeAgreements ImprovementÐEvaluation ofApplications the OfficeofEducationalResearchand Evaluation ofActivitiesCarriedOutby Standards fortheConductand 34 CFRPart700 Education Department of Part II 30159 30160 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules DEPARTMENT OF EDUCATION Act). The Act restructured the Office of engaged in research and development Educational Research and Improvement and actively solicit recommendations 34 CFR Part 700 (OERI) and endowed it with a broad from research organizations and mandate to conduct an array of research, members of the general public. OERI RIN 1850±AA51 development, dissemination, and has: (1) Reviewed peer review Standards for the Conduct and improvement activities aimed at procedures used by NIH, NSF, and Evaluation of Activities Carried Out by strengthening the education of all various program offices within the the Office of Educational Research and students. The Act also required the Department of Education; (2) requested Improvement (OERI)ÐEvaluation of establishment of a National Educational recommendations from research Applications for Grants and Research Policy and Priorities Board organizations and associations; and (3) Cooperative Agreements and (the Board) to work collaboratively with solicited public comment on standards Proposals for Contracts the Assistant Secretary to identify of peer review and program evaluation priorities to guide the work of OERI. activities through a general notice AGENCY: Department of Education. requesting comments on the Statutory Requirements ACTION: Notice of proposed rulemaking implementation of the Office’s new (NPRM). The legislation directed the Assistant authorizing legislation published in the Secretary to develop, in consultation Federal Register on July 7, 1994 (59 FR SUMMARY: The Assistant Secretary for with the Board, such standards as may 34802). Educational Research and Improvement be necessary to govern the conduct and proposes to add regulations that evaluation of all research, development, Proposed Standards establish standards for the evaluation of and dissemination activities carried out These proposed standards have been applications for grants and cooperative by the Office to ensure that such developed by the Assistant Secretary in agreements and proposals for contracts. activities meet the highest standards of consultation with the Board. The The development of these standards is professional excellence. Such standards standards proposed in this NPRM— required by the Office of Educational shall at a minimum— • Require that a process of open Research and Improvement’s (a) Require that a process of open competition be used in awarding or authorizing legislation, the ‘‘Educational competition be used in awarding or entering into all grants, cooperative Research, Development, Dissemination, entering into all grants, contracts, and agreements and contracts funded under and Improvement Act of 1994.’’ The cooperative agreements under the Act; the Act; standards will ensure that such (b) Require that a system of peer • Require that a system of peer review application and proposal evaluation review be utilized by the Office for— be used for reviewing and evaluating all activities meet the highest standards of (1) Reviewing and evaluating all applications for grants and cooperative professional excellence. applications for grants and cooperative agreements and proposals for those DATES: Comments must be received on agreements and proposals for those contracts which exceed $100,000; or before July 24, 1995. contracts which exceed $100,000; • Establish principles for selecting ADDRESSES: All comments concerning (2) Evaluating and assessing the qualified peer reviewers to evaluate and these proposed regulations should be performance of all recipients of grants review applications for grants and addressed to Edward J. Fuentes, U.S. from and cooperative agreements and cooperative agreements and proposals contracts with the Office; and for contracts; Department of Education, 555 New • Jersey Avenue, N.W., Room 600, (3) Reviewing and designating Establish general procedures to be Washington, D.C. 20208–5530. exemplary and promising programs in followed by the peer reviewers when Comments may also be sent through accordance with section 941(d) of the evaluating applications or proposals; • Establish improved evaluation Internet to Act; ll (c) Describe the general procedures criteria; and stan [email protected]. • Describe the process by which A copy of any comments that concern which shall be used by each peer review applications or proposals are selected information collection requirements panel in its operations; (d)(1) Describe the procedures which for funding. should also be sent to the Office of In accordance with section Management and Budget at the address shall be utilized in evaluating applications for grants and cooperative 912(i)(3)(C) of the Act, § 700.2 of the listed in the Paperwork Reduction Act proposed regulations provides that these section of this preamble. agreements and contract proposals; and (2) Specify the criteria and factors standards shall be binding on all FOR FURTHER INFORMATION CONTACT: which shall be considered in making activities carried out by OERI using Edward J. Fuentes. Telephone (202) such evaluations; funds appropriated under section 219–1895. Internet electronic mail 912(m) of the Act. The OERI activities ll (e) Describe the procedures which address: stan [email protected]. shall be utilized in reviewing carried out with funds appropriated Individuals who use a educational programs for designation as pursuant to section 912(m) of the Act telecommunications device for the deaf exemplary or promising programs; and are specified in § 700.2(b) of the (TDD) may call the Federal Information (f) Require that the performance of all proposed regulations. Relay Service (FIRS) at 1–800–877–8339 recipients of grants from and contracts The Secretary believes that these between 8 a.m. and 8 p.m., Eastern time, and cooperative agreements with the standards will ensure that applications Monday through Friday. Office shall be periodically evaluated, for grant and cooperative agreement SUPPLEMENTARY INFORMATION: both during and at the conclusion of awards and proposals for contract their receipt of assistance. awards are reviewed and evaluated in a Background The Act also requires that the rigorous, nonpartisan manner by highly On March 31, 1994, President Clinton Assistant Secretary review the qualified experts. The standards require signed Public Law 103–227, which procedures utilized by the National that each application for a grant or includes Title IX—the ‘‘Educational Institutes of Health (NIH), the National cooperative agreement be evaluated by Research, Development, Dissemination, Science Foundation (NSF), and other at least three peer reviewers except for and Improvement Act of 1994’’ (the Federal departments or agencies awards of less than $50,000 when fewer Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30161 reviewers may be used and for awards Secretary may select the criterion heading Paperwork Reduction Act of of more than $1,000,000 when at least ‘‘National Significance’’; the Secretary 1980. five reviewers must be used. These may evaluate a national research center In assessing the potential costs and requirements reflect the Secretary’s in terms of its potential contribution to benefits—both quantitative and belief that the number of reviewers used increased knowledge or understanding qualitative—of these proposed should reflect the complexity of the of educational problems, issues, or regulations, the Secretary has activities that are the subject of the effective strategies and the potential determined that the benefits of the competition and that competitions contribution of the project to the proposed regulations justify the costs. involving larger awards generally are development and advancement of more complex than those involving theory and knowledge in the field of The Secretary has also determined smaller awards. Therefore, applications study. In the case of a field initiated that this regulatory action does not for grant awards should be reviewed by study competition, the Secretary may unduly interfere with State, local, and a group large enough to provide the evaluate the national significance of a tribal governments in the exercise of breadth of perspectives necessary to project in terms of the importance of the their governmental functions. evaluate the proposed work. problem to be addressed and the To assist the Department in The Secretary believes that conflicts potential of the project to contribute to complying with the specific of interest for peer reviewers should be the development and advancement of requirements of Executive Order 12866, determined by applying established theory and knowledge in the field of the Secretary invites comment on Department policy. Accordingly, peer study. In the case of a competition for whether there may be further reviewers for grants and cooperative demonstration activities, the Secretary opportunities to reduce any potential agreements will be considered may evaluate the national significance costs or increase potential benefits employees of the agency for the of a project in terms of whether the resulting from these proposed purposes of conflicts of interest project involves the development or regulations without impeding the analysis. As employees of the agency, demonstration of creative or innovative effective and efficient administration of peer reviewers will be subject to 18 strategies that build on, or are the program. U.S.C. Section 108, the criminal statute alternatives to, existing strategies and regarding conflicts of interest for the potential for generalizing from Clarity of the Regulations government employees and, 5 CFR project findings or results. For some Executive Order 12866 requires each Section 2635.502, the Office of competitions, the Secretary may select agency to write regulations that are easy Government Ethics regulations. the criterion, ‘‘National Significance’’ to understand. To the extent practicable, the without selecting specific factors. Secretary believes that these standards The proposed standards provide an The Secretary invites comments on should apply to all research, opportunity to improve significantly the how to make these proposed regulations development, dissemination, manner in which OERI carries out its easier to understand, including answers demonstration, and school improvement mandate by establishing a menu of to questions such as the following: (1) activities carried out by OERI. evaluation criteria that: (1) Provide Are the requirements in the proposed Furthermore, the Secretary believes that OERI the flexibility to choose a set of regulations clearly stated? (2) Do the in many instances, the proposed peer criteria tailored to a given competition; regulations contain technical terms or review standards and evaluation criteria and (2) obviate the need to create other wording that interferes with their may be relevant to the research, specific evaluation criteria through clarity? (3) Does the format of the development, and dissemination individual program regulations. regulations (grouping and order of activities carried out by other offices in The Assistant Secretary will publish sections, use of headings, paragraphing, the Department. Therefore, § 700.3 at a later date additional proposed etc.) aid or reduce their clarity? Would authorizes the Secretary to elect to regulations to establish procedures to be the regulations be easier to understand apply these standards to other activities used to designate programs as if they were divided into more (but carried out by the Department. The exemplary or promising and to evaluate shorter) sections? (A ‘‘section’’ is Secretary will announce through the the performance of all recipients preceded by the symbol ‘‘§ ’’ and a grant application notice published in awarded grants, cooperative agreements, numbered heading; for example, the Federal Register, the extent to or contracts by the Office. § 700.11 Who may serve as peer which the standards are applicable for reviewers.) (4) Is the description of the a given competition. Executive Order 12866 In accordance with section regulations in the ‘‘Supplementary 912(i)(2)(D)(ii) of the Act, Subpart D of Assessment of Costs and Benefits Information’’ section of this preamble these proposed regulations specifies the These proposed regulations have been helpful in understanding the evaluation criteria that may be used by reviewed in accordance with Executive regulations? How could this description reviewers to evaluate applications for Order 12866. Under the terms of the be more helpful in making the grant and cooperative agreements and order the Secretary has assessed the regulations easier to understand? (5) proposals for contracts. For each potential costs and benefits of this What else could the Department do to competition, the Secretary will select regulatory action. make the regulations easier to the criteria that best enable the The potential costs associated with understand? Department to identify the highest the proposed regulations are those A copy of any comments that concern quality applications consistent with the resulting from statutory requirements how the Department could make these program purpose, statutory and those determined by the Secretary proposed regulations easier to requirements and any priorities as necessary for administering this understand should be sent to Stanley M. established. The Secretary may add to program effectively and efficiently. Cohen, Regulations Quality Officer, U.S. any individual criterion one or more Burdens specifically associated with Department of Education, 600 specific factors within that criterion. For information collection requirements, if Independence Avenue, S.W. (Room example, in the case of a national any, are identified and explained 5121, FB–10B), Washington, D.C. research center competition, the elsewhere in this preamble under the 20202–2241. 30162 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules Regulatory Flexibility Act Certification governments for coordination and Subpart CÐThe Peer Review Process The Secretary certifies that these review of proposed Federal financial 700.20 How many peer reviewers will be proposed regulations would not have a assistance. used? In accordance with the order, this 700.21 How are applications for grants and significant economic impact on a document is intended to provide early cooperative agreements evaluated? substantial number of small entities. notification of the Department’s specific 700.22 How are proposals for contracts The small entities that would be plans and actions for this program. evaluated? affected by these proposed regulations are small local educational agencies Invitation to Comment Subpart DÐEvaluation Criteria (LEAs) and private schools receiving 700.30 What evaluation criteria are used for Interested persons are invited to grants and cooperative agreements? Federal funds under this program. submit comments and recommendations However, the regulations would not 700.31 What additional evaluation criteria regarding these proposed regulations. shall be used for grants and cooperative have a significant economic impact on All comments submitted in response agreements? the small LEAs and private schools to these proposed regulations will be 700.32 What evaluation criteria shall be affected because the regulations would available for public inspection, during used for contracts? not impose excessive regulatory burdens and after the comment period, in Room Subpart EÐSelection for Award or require unnecessary Federal 600, 555 New Jersey Avenue, N.W., supervision. The regulations would Washington, D.C., between the hours of 700.40 How are grant and cooperative agreement applications selected for impose minimal requirements to ensure 8:30 a.m. and 4:00 p.m., Monday the proper expenditure of program award? through Friday of each week except 700.41 How are contract proposals selected funds. Federal holidays. for award? Paperwork Reduction Act of 1980 List of Subjects in 34 CFR Part 700 Authority: 20 U.S.C. 6011(i), unless otherwise noted. Section 700.30 contains information Education, Educational research, collection requirements. As required by Elementary and secondary education, Subpart AÐGeneral the Paperwork Reduction Act of 1980, Government contracts, Grant the Department of Education will programs—education, Libraries, 700.1 What is the purpose of these submit a copy of this section to the Reporting and recordkeeping standards? Office of Management and Budget requirements. (a) The standards in this part (OMB) for its review. (44 U.S.C. 3504(h)) (Catalog of Federal Domestic Assistance implement section 912(i) of the These regulations affect the following Number does not apply.) Educational Research, Development, types of entities eligible to apply for Dated: May 31, 1995. Dissemination, and Improvement Act of grants and cooperative agreements: State Sharon P. Robinson, 1994. or local governments, businesses or (b) These standards are intended to other for profit organizations, nonprofit Assistant Secretary for Educational Research and Improvement. ensure that activities carried out by the institutions, and any combinations of The Secretary proposes to amend Office of Educational Research and these types of entities. The Department chapter VII of Title 34 of the Code of Improvement meet the highest needs and uses the information to Federal Regulations by adding a new standards of professional excellence. evaluate applications for funding. Part 700 to read as follows: Annual public reporting and (Authority: 20 U.S.C. 6011(i)(1)) recordkeeping burden for this collection PART 700ÐSTANDARDS FOR THE § 700.2 What activities must be governed of information is estimated to range CONDUCT AND EVALUATION OF by these standards? from 15 hours for each of the ACTIVITIES CARRIED OUT BY THE (a) The standards in this part are approximately 750 applications OFFICE OF EDUCATIONAL binding on all activities carried out by expected for a field initiated study RESEARCH AND IMPROVEMENT the Office using funds appropriated competition to 150 hours for ten or (OERI)ÐEVALUATION OF under section 912(m) of the Educational fewer applications expected for a APPLICATIONS FOR GRANTS AND Research, Development, Dissemination, national research center. Therefore, the COOPERATIVE AGREEMENTS AND and Improvement Act of 1994. actual burden will be determined by the PROPOSALS FOR CONTRACTS type of project to be supported in the (b) Activities carried out with funds particular competition. Subpart AÐGeneral appropriated under section 912(m) of Organizations and individuals Sec. the Act include activities carried out by desiring to submit comments on the 700.1 What is the purpose of these the following entities or programs: information collection requirements standards? (1) The National Research Institutes. 700.2 What activities must be governed by should direct them to the Office of (2) The Office of Reform Assistance Information and Regulatory Affairs, these standards? 700.3 What additional activities may be and Dissemination. OMB, Room 3002, New Executive Office governed by these standards? Building, Washington, D.C. 20503; (3) The Educational Resources 700.4 What definitions apply? Information Center Clearinghouses. Attention: Daniel J. Chenok. 700.5 What are the processes of open competition? (4) The Regional Educational Intergovernmental Review Laboratories. Subpart BÐSelection of Peer Reviewers This program is subject to the (5) The Teacher Research 700.10 When is the peer review process requirements of Executive Order 12372 Dissemination Demonstration Program. and the regulations in 34 CFR Part 79. used? 700.11 Who may serve as peer reviewers? (6) The Goals 2000 Community The objective of the Executive order is 700.12 What constitutes a conflict of Partnerships Program. to foster an intergovernmental interest for grants and cooperative (7) The National Educational Research partnership and a strengthened agreements? federalism by relying on processes 700.13 What constitutes a conflict of Policy and Priorities Board. developed by State and local interest for contracts? (Authority: 20 U.S.C. 6011(i)(1)) Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30163 § 700.3 What additional activities may be § 700.5 What are the processes of open competition for new awards for grants governed by these standards? competition? and cooperative agreements— (a) The Secretary may elect to apply The Secretary uses a process of open (i) Department staff shall not serve as the standards in this part to activities competition in awarding or entering peer reviewers except in exceptional carried out by the Department using into all grants, cooperative agreements, circumstances as determined by the funds appropriated under an authority and contracts governed by these Secretary; and other than section 912(m) of the Act. standards. The processes of open (ii) The majority of reviewers shall be (b)(1) If the Secretary elects to apply competition are the following: persons not employed by the Federal these standards to a competition for new (a) For all new awards for grants and Government. grant or cooperative agreement awards, cooperative agreements, the Secretary (2) For each review of an unsolicited the Secretary announces in a notice will make awards pursuant to the grant or cooperative agreement published in the Federal Register, the provisions of EDGAR with the exception application— extent to which these standards are of the provisions in 34 CFR 75.100(c)(5), (i) Department employees may assist applicable to the competition. 75.200 (b)(3), (b)(5), 75.210, and 75.217 the Secretary in making an initial (2) If the Secretary elects to apply (b)(1), (b)(2), (c), and (d). determination under 34 CFR 75.222(b); these standards to a solicitation for a (b) For contracts, the Department will and contract award, the Secretary announces conduct acquisitions pursuant to this (ii) Department employees may not in the request for proposals the extent part in accordance with the serve as peer reviewers in accordance to which these standards are applicable requirements of the Competition in with 34 CFR 75.222(c). to the solicitation. Contracting Act, 41 U.S.C. 253, and the (c) To the extent feasible, the (Authority: 20 U.S.C. 6011(i)) FAR. Secretary selects peer reviewers for each (Authority: 20 U.S.C. 6011(i)(2); 41 U.S.C. competition who represent a broad § 700.4 What definitions apply? 253) range of perspectives. (a) Definitions in the Educational (Authority: 20 U.S.C. 6011(i)(2)(B)) Research, Development, Dissemination, Subpart BÐSelection of Peer and Improvement Act of 1994. The Reviewers § 700.12 What constitutes a conflict of following terms used in this part are interest for grants and cooperative defined in 20 U.S.C. 6011(l): § 700.10 When is the peer review process agreements? used? (a) Peer reviewers for grants and Development Dissemination The Secretary uses a peer review cooperative agreements are considered Educational Research Office process— employees of the agency for the National Research Institute (a) To review and evaluate all purposes of conflicts of interest Technical Assistance applications for grants and cooperative analysis. (b) Definitions in Education agreements and proposals for those (b) As employees of the agency, peer Department General Administrative contracts which exceed $100,000; reviewers are subject to the provisions (b) To review and designate Regulations. The following terms used of 18 U.S.C. 208, 5 CFR 2635.502, and exemplary and promising programs in in this part are defined in 34 CFR 77.1: the Department policies used to accordance with section 941(d) of the implement those provisions. Applicant Act; and (Authority: 20 U.S.C. 6011(i)(2)(B)) Application (c) To evaluate and assess the Award performance of all recipients of grants § 700.13 What constitutes a conflict of Department interest for contracts. Grant from and cooperative agreements and Project contracts with the Office. (a) Peer reviewers for contract Secretary (Authority: 20 U.S.C. 6011(i)(2)(B)) proposals are considered employees of (c) Definitions in the Federal the agency in accordance with FAR, 48 § 700.11 Who may serve as peer CFR 3.104–4(h)(2). Acquisition Regulation. The following reviewers? terms used in this part are defined in 48 (b) As employees of the agency, peer (a) An individual may serve as a peer CFR Chapter 1: reviewers are subject to the provisions reviewer for purposes of reviewing and of the FAR, 48 CFR Part 3 Improper Contracting Officer evaluating applications for new awards Business Practices and Personal Conflict Employee of an Agency for grants and cooperative agreements of Interest. Proposal and contract proposals if the Solicitation (Authority: 41 U.S.C. 423) individual— (d) Other definitions. The following (1) Possesses one or more of the Subpart CÐThe Peer Review Process definitions also apply to this part: following qualifications: Act means the Educational Research, (i) Demonstrated expertise, including § 700.20 How many peer reviewers will be Development, Dissemination, and training and experience, relevant to the used? Improvement Act of 1994 (title IX of subject of the competition. (a) Each application for a grant or Pub. L. 103–227, 108 Stat. 212). (ii) In-depth knowledge of policy and cooperative agreement award shall be EDAR means the Department of practice in the field of education. reviewed and evaluated by at least three Education Acquisition Regulation, 48 (iii) In-depth knowledge of theoretical peer reviewers except— CFR chapter 34. perspectives or methodological (1) For those grant and cooperative EDGAR means the Department of approaches relevant to the subject of the agreement awards under $50,000, fewer Education General Administrative competition; and than three peer reviewers may be used Regulations, 34 CFR parts 74, 75, 76, 77, (2) Does not have a conflict of interest, if the Secretary determines that 79, 80, 81, 82, 85 and 86. as determined in accordance with adequate peer review can be obtained FAR means the Federal Acquisition § 700.12. using fewer reviewers; and Regulation, 48 CFR chapter 1. (b)(1) Except as provided in paragraph (2) For those grant and cooperative (Authority: 20 U.S.C. 6011) (b)(2) of this section, for each agreement awards of more than 30164 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules $1,000,000, at least five reviewers will importance or weight assigned to those (ii) In determining the national be used. criteria; and significance of the proposed project, the (b) Each contract proposal shall be (3) Support the rating for each Secretary may consider one or more of read by at least three reviewers unless proposal with concise written the following factors: the contracting officer determines that comments based on the reviewer’s (A) The importance of the problem or an adequate peer review can be obtained analysis of the strengths and weaknesses issue to be addressed. by fewer reviewers. of the proposal with respect to each of (B) The potential contribution of the (c) Before releasing contract proposals the applicable technical evaluation project to increased knowledge or to peer reviewers outside the Federal criteria. understanding of educational problems, Government, the contracting officer (c) After each peer reviewer has issues, or effective strategies. shall comply with FAR, 48 CFR 15.413– evaluated each proposal independently, (C) The scope of the project. 2(f). those reviewers who evaluated a (D) The potential for generalizing (Authority: 20 U.S.C. 6011(i)(2)(B)) common set of proposals may be from project findings or results. convened to discuss the strengths and (E) The potential contribution of the § 700.21 How are applications for grants weaknesses of those proposals. Each project to the development and and cooperative agreements evaluated? reviewer may then independently advancement of theory and knowledge (a) Each peer reviewer shall be given reevaluate and re-rate a proposal with in the field of study. a number of applications to evaluate. appropriate changes made to the written (F) Whether the project involves the (b) Each peer reviewer shall— comments. development or demonstration of (1) Independently evaluate each creative or innovative strategies that (d) Following discussion and any application; build on, or are alternatives to, existing reevaluation and re-rating, reviewers (2) Evaluate and rate each application strategies. shall rank proposals and advise the based on the reviewer’s assessment of (G) The nature of the products (such contracting officer of each proposal’s the quality of the application according as information, materials, processes, or acceptability for contract award as to the evaluation criteria and the techniques) likely to result from the ‘‘acceptable,’’ ‘‘capable of being made weights assigned to those criteria; and project and the potential for their acceptable without major (3) Support the rating for each effective use in a variety of other modifications,’’ or ‘‘unacceptable.’’ application with concise written settings. Reviewers may also submit technical comments based on the reviewer’s (H) The extent and quality of plans for questions to be asked of the offeror analysis of the strengths and weaknesses disseminating results in ways that will regarding the proposal. of the application with respect to each allow others to use the information. of the applicable evaluation criteria. (Authority: 20 U.S.C. 6011(i)(2)(C)) (2) Quality of the project design. (i) (c) After each peer reviewer has The Secretary considers the quality of evaluated and rated each application Subpart DÐEvaluation Criteria the design of the proposed project. independently, those reviewers who § 700.30 What evaluation criteria are used (ii) In determining the quality of the evaluated a common set of applications for grants and cooperative agreements? design of the proposed project, the will be convened to discuss the Secretary may consider one or more of (a) Except as provided in paragraph strengths and weaknesses of those the following factors: (d) of this section, the Secretary applications. Each reviewer may then (A) Whether the goals, objectives, and announces the applicable evaluation independently reevaluate and re-rate an outcomes to be achieved by the project criteria for each competition and the application with appropriate changes are clearly specified and measurable. assigned weights in a notice published made to the written comments. (B) Whether there is a conceptual in the Federal Register. (d) Following discussion and any framework underlying the proposed reevaluation and re-rating, reviewers (b) In determining the evaluation activities and the quality of that shall independently place each criteria to be used in each grant and framework. application in one of two categories, cooperative agreement competition, the (C) Whether the proposed activities either ‘‘recommended for funding’’ or Secretary selects from among the constitute a coherent, sustained program ‘‘not recommended for funding.’’ evaluation criteria in paragraph (e) of of research and development in the (e) After the peer reviewers have this section and may select from among field, including a substantial addition to evaluated, rated, and made funding the specific factors listed under each an ongoing line of inquiry. recommendations regarding the criterion. (D) Whether a specific research design applications, the Secretary prepares a (c) The Secretary assigns relative has been proposed, and the quality and rank order of the applications based weights to each selected criterion and appropriateness of that design, solely on the peer reviewers’ factor. including the scientific rigor of the evaluations. (d) In determining the evaluation studies involved. criteria to be used for unsolicited (Authority: 20 U.S.C. 6011(i)(2)(C)) (E) The extent to which the research applications, the Secretary selects from design includes a thorough, high-quality § 700.22 How are proposals for contracts among the evaluation criteria in review of the relevant literature, a high- evaluated? paragraph (e) of this section, and may quality plan for research activities, and (a) Each peer reviewer shall be given select from among the specific factors the use of appropriate theoretical and a number of technical proposals to listed under each criterion, the criteria methodological tools, including those of evaluate. which are most appropriate to evaluate a variety of disciplines, where (b) Each peer reviewer shall— the activities proposed in the appropriate. (1) Independently evaluate each application. (F) The quality of the demonstration technical proposal; (e) The Secretary establishes the design and procedures for documenting (2) Evaluate and rate each proposal following evaluation criteria: project activities and results. based on the reviewer’s assessment of (1) National significance. (i) The (G) The extent to which development the quality of the proposal according to Secretary considers the national efforts include iterative testing of the technical evaluation criteria and the significance of the proposed project. products and adequate quality controls. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30165 (H) The likelihood that the design of (F) The potential for continued acquisition and the relative importance the project will successfully address the support of the project after federal of those factors are within the broad intended, demonstrated educational funding ends. discretion of agency acquisition needs or needs. (5) Quality of the management plan. officials. (I) How well and innovatively the (i) The Secretary considers the quality of (b) At a minimum, the evaluation project addresses statutory purposes, the management plan of the proposed criteria to be considered shall include requirements and any priority or project. cost or price and quality. Evaluation priorities announced for the program. (ii) In determining the quality of the factors related to quality are called (J) The quality of the plan for management plan of a proposed project, technical evaluation criteria. evaluating the functioning and impact the Secretary may consider one or more (c) Technical evaluation criteria may of the project, including the objectivity of the following factors: include, but are not limited to, the of the evaluation and the extent to (A) The adequacy of the management following: which the methods of evaluation are plan to achieve the objectives of the (1) Technical excellence. appropriate to the goals, objectives, and project, including the specification of (2) Management capability. outcomes of the project. staff responsibility, timelines, and (3) Personnel qualifications. (3) Quality and potential benchmarks for accomplishing project (4) Prior experience. contributions of personnel. (i) The tasks. (5) Past performance. Secretary considers the quality and (B) The adequacy of plans for (6) Schedule compliance. ensuring high-quality products and potential contributions of personnel for (Authority: 20 U.S.C. 6011(i)(2)(D)(ii)) the proposed project. services. (ii) In determining the quality and (C) The adequacy of plans for Subpart EÐSelection for Award potential contributions of personnel for ensuring continuous improvement in the proposed project, the Secretary may the operation of the project. § 700.40 How are grant and cooperative agreement applications selected for award? consider one or more of the following (D) Whether time commitments of the factors: project director or principal investigator (a) The Secretary determines the order and other key personnel are appropriate (A) The qualifications, including in which applications will be selected and adequate to meet project objectives. training and experience, of the project for grants and cooperative agreement (E) How the applicant will ensure that director or principal investigator. awards. The Secretary considers the a diversity of perspectives are brought to (B) The qualifications, including following in making these bear in the operation of the project, training and experience, of key project determinations: including those of parents and teachers, personnel. (1) An applicant’s ranking. where appropriate. (2) Recommendations of the peer (C) The qualifications, including (F) How the applicant will ensure that training and experience, of proposed reviewers with regard to funding or not persons who are otherwise eligible to funding. consultants or subcontractors. participate in the project are selected (D) Past performance of any personnel (3) Information concerning an without regard to race, color, national applicant’s performance and use of in any previous Department-supported origin, gender, age, or disability. grants or cooperative agreements. funds under a previous Federal award. (G) The adequacy of plans for (4) Amount of funds available for the (4) Adequacy of resources. (i) The widespread dissemination of project Secretary considers the adequacy of competition. results and products in ways that will (5) Any other information relevant to resources for the proposed project. assist others to use the information. (ii) In determining the adequacy of a priority or other statutory or regulatory resources for the proposed project, the (Authority: 20 U.S.C. 6011(i)(2)(D)(ii)) requirement applicable to the selection Secretary may consider one or more of of applications for new awards. § 700.31 What additional evaluation (b) In the case of unsolicited the following factors: criteria shall be used for grants and (A) The adequacy of support from the cooperative agreements? applications, the Secretary uses the procedures in EDGAR (34 CFR 75.222 lead applicant organization. In addition to the evaluation criteria (d) and (e)). (B) The relevance and commitment of established in § 700.30(e), criteria or each partner in the project to the factors specified in the applicable (Authority: 20 U.S.C. 6022(i)(2)(D)(i)) implementation and success of the program statute shall be used to § 700.41 How are contract proposals project. evaluate applications for grants and selected for award? (C) Whether the budget is adequate to cooperative agreements. Following evaluation of the proposals, support the project. (Authority: 20 U.S.C. 6011(i)(2)(D)(ii)) the contracting officer shall select for (D) Whether the costs are reasonable award the offeror whose proposal is in relation to the objectives, design, and § 700.32 What evaluation criteria shall be most advantageous to the Government potential significance of the project. used for contracts? considering cost or price and the other (E) The cost-effectiveness of the (a) The evaluation criteria to be factors included in the solicitation. project and the adequacy of the support considered in the technical evaluation provided by the applicant organization of contract proposals are contained in (Authority: 20 U.S.C. 6011(i)(2)(D)(i)) in any previous Department-supported the FAR at 48 CFR 15.605. The [FR Doc. 95–13690 Filed 6–6–95; 8:45 am] grant or cooperative agreement. evaluation criteria that apply to an BILLING CODE 4000±01±P federal register June 7,1995 Wednesday Indian Tribe;Notice Acknowledgment ofExistenceasan Receipt ofPetitionforFederal Bureau ofIndianAffairs Interior Department ofthe Part III 30167 30168 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Notices DEPARTMENT OF THE INTERIOR by the Bureau of Indian Affairs (BIA) on the petitioner upon receipt by the BIA. April 24, 1995, and was signed by The petitioner will be provided an Bureau of Indian Affairs members of the group’s governing body. opportunity to respond to such This is a notice of receipt of petition submissions prior to a final Receipt of Petition for Federal and does not constitute notice that the determination regarding the petitioner’s Acknowledgment of Existence as an petition is under active consideration. status. Indian Tribe Notice of active consideration will be The petition may be examined, by This is published in the exercise of sent by mail to the petitioner and other appointment, in the Department of the authority delegated by the Secretary of interested parties at the appropriate Interior, Bureau of Indian Affairs, the Interior to the Assistant Secretary— time. Branch of Acknowledgment and Indian Affairs by 209 DM 8. Under Section 83.9(a) (formerly Research, Room 1362–MIB, 1849 C Pursuant to 25 CFR 83.9(a) (formerly 54.8(d)) of the Federal regulations, Street, N.W., Washington, D.C. 20240, 25 CFR 54.8(a)) notice is hereby given interested parties may submit factual Phone: (202) 208–3592. that the Fernandeno/Tataviam Tribal and/or legal arguments in support of or Council, 11640 Rincon Avenue, Sylmar, in opposition to the group’s petition. Dated: May 30, 1995. California 91342 has filed a petition for Any information submitted will be Ada E. Deer, acknowledgment by the Secretary of the made available on the same basis as Assistant Secretary—Indian Affairs. Interior that the group exists as an other information in the BIA’s files. [FR Doc. 95–13864 Filed 6–6–95; 8:45 am] Indian tribe. The petition was received Such submissions will be provided to BILLING CODE 4310±02±P federal register June 7,1995 Wednesday Proposed Rule Marketing AgreementandOrderNo.982; Proposed FurtherAmendmentof Washington; RecommendedDecisionon Filberts/Hazelnuts GrowninOregonand 7 CFRPart982 Agricultural MarketingServices Agriculture Department of Part IV 30169 30170 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules DEPARTMENT OF AGRICULTURE D.C. 20090–6456; telephone: 202–720– handler votes when electing handler 6862; FAX 202–720–5698. nominees, and change the voting Agricultural Marketing Service SUPPLEMENTARY INFORMATION: Prior procedures used for nominating documents in this proceeding: Notice of members; (4) allow Board telephone 7 CFR Part 982 Public Hearing issued on February 24, votes to remain unconfirmed until the [Docket No. AO±205±A7; FV94±982±1] 1994, and published in the February 28, next public Board meeting; (5) remove 1994, issue of the Federal Register (59 the ‘‘verbatim’’ reporting requirement Filberts/Hazelnuts Grown in Oregon FR 9425). on Board marketing policy meetings; (6) and Washington; Recommended This administrative action is governed provide the Board with some flexibility Decision on Proposed Further by the provisions of sections 556 and in recommending final free and Amendment of Marketing Agreement 557 of title 5 of the United States Code, restricted percentages; (7) authorize and Order No. 982 and, therefore, is excluded from the different identification standards for requirements of Executive Order 12866. inspected and certified hazelnuts; (8) AGENCY: Agricultural Marketing Service, correct current language that specifies USDA. Preliminary Statement handler credit for ungraded hazelnuts; ACTION: Proposed rule and opportunity Notice is hereby given of the filing (9) change the procedures for to file exceptions. with the Hearing Clerk of this establishing bonding requirements for recommended decision with respect to deferred restricted obligations and allow SUMMARY: This recommended decision the proposed further amendment of the Board to purchase excess restricted invites written exceptions on proposed Marketing Agreement and Order No. credits from handlers; (10) clarify that amendments to Marketing Agreement 982 and of the opportunity to file mail order sales outside the production and Order No. 982 (order). The written exceptions thereto. For the area are not exempt from order agreement and order regulate the purposes of this document and this requirements; (11) allow the Board to handling of filberts/hazelnuts grown in formal rulemaking proceeding, accept advance assessment payments, Oregon and Washington. The proposed Marketing Agreement and Order No. provide discounts for such payments, amendments would make changes in 982 is referred to as the ‘‘order’’ and the and accept voluntary contributions; and order provisions regarding: Volume term filberts and filberts/hazelnuts is (12) make such changes as are necessary control; nomination and membership of hereinafter referred to as hazelnuts. to conform with any amendment that the Filbert/Hazelnut Marketing Board Copies of this decision may be obtained may result from the hearing. (Board); collecting assessments; and the from Teresa Hutchinson or Tom The public hearing was held to: (1) administration and operation of the Tichenor, at the addresses listed above. Receive evidence about the economic program. The proposed amendments This notice is issued pursuant to the and marketing conditions which relate were submitted by the Board to make provisions of the Agricultural Marketing to the proposed amendments of the the order more consistent with current Agreement Act of 1937, as amended (7 order; (2) determine whether there is a industry conditions and needs. The U.S.C. 601 et seq.), hereinafter referred need for the proposed amendments to Fruit and Vegetable Division, to as the ‘‘Act,’’ and the applicable rules the order; and (3) determine whether the Agricultural Marketing Service (AMS), of practice and procedure governing the proposed amendments, or appropriate is proposing conforming and other formulation of marketing agreements modifications thereof, will tend to necessary changes. The proposed and orders (7 CFR part 900). effectuate the declared policy of the Act. amendments are designed to improve The proposed further amendment of No person testified in opposition to order operations. the order is based on the record of a the proposals offered at the hearing and public hearing held in Newberg, DATES: Written exceptions must be filed no alternative proposals were offered. Oregon, on March 8, 1994. Notice of this by July 7, 1995. At the conclusion of the hearing, the hearing was published in the Federal administrative law judge fixed April 8, ADDRESSES: Written exceptions should Register on February 28, 1994. The 1994, as the final date for interested be filed with the Hearing Clerk, U.S. notice of public hearing listed 12 persons to file corrections to the hearing Department of Agriculture, room 1081– proposals submitted by the Board, the transcript, proposed findings and S, Washington, D.C. 20050–9200, FAX agency responsible for local conclusions, and written arguments or (202) 720–9776. Four copies of all administration of the order, and one briefs based on the evidence received at written exceptions should be submitted proposal by the Fruit and Vegetable the hearing. Corrections to the hearing and should reference the docket number Division (Division), of the Agricultural transcript were filed by the Division and the date and page number of this Marketing Service (AMS), U.S. with the Hearing Clerk on April 5, 1994. issue of the Federal Register. Department of Agriculture No other corrections, findings, Exceptions will be made available for (Department), concerning conforming conclusions, arguments or briefs were public inspection in the Office of the changes. filed. Hearing Clerk during regular business The proposals would: (1) Change the hours. name of the commodity covered under Small Business Considerations FOR FURTHER INFORMATION CONTACT: the order from ‘‘filberts’’ to ‘‘hazelnuts;’’ In accordance with the provisions of Teresa Hutchinson, Marketing (2) for purposes of volume regulation, the Regulatory Flexibility Act (RFA) (5 Specialist, Northwest Marketing Field establish the trade demand area as the U.S.C. 601 et seq.), the Administrator of Office, Fruit and Vegetable Division, entire United States and allow the the AMS has determined that this action Agricultural Marketing Service, USDA, Board, with the Secretary’s approval, to would not have a significant economic 1220 SW Third Ave., room 369, make changes in the inshell trade impact on a substantial number of small Portland, OR 97204; telephone (503) acquisition distribution area; (3) change entities. Small agricultural service firms, 326–2724, FAX (503) 326–7440; or Tom the length of Board members’ terms of which include handlers regulated under Tichenor, Marketing Order office and the number of consecutive this order, have been defined by the Administration Branch, Fruit and terms that may be held, make changes Small Business Administration (SBA) Vegetable Division, AMS, USDA, room in the criteria used for nominating (13 CFR 121.601) as those having annual 2523–S, P.O. Box 96456, Washington, handler members and for weighting receipts for the last three years of less Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30171 than $5,000,000. Small agricultural proposed amendments are designed to are expected to outweigh the costs. producers are defined as those having assist the Board in its domestic and Finally, the proposed amendments annual receipts of less than $500,000. export marketing efforts. The would have no significant impact or The purpose of the RFA is to fit amendments would allow the Board to burden on small businesses’ regulatory actions to the scale of make program and management recordkeeping and reporting business subject to such actions in order decisions that are more consistent with requirements. that small businesses will not be unduly changing market conditions and better The amendments proposed herein or disproportionately burdened. respond to changing marketing needs. have been reviewed under Executive Interested persons were invited to Because the Board acts in the best Order 12778, Civil Justice Reform and present evidence at the hearing on the interests of the industry, increased are not intended to have retroactive probable regulatory and informational Board decision making flexibility affect. If adopted, the proposed impact of the proposed amendments on should benefit the industry and, thus, amendments would not preempt any small businesses. The record indicates small businesses in the industry. state or local laws, regulations, or that handlers would not be unduly Regarding nomination and Board policies, unless they present an burdened by any additional regulatory membership, the proposed amendments irreconcilable conflict with the requirements, including those would: Change from one to two years amendments. pertaining to reporting and the length of Board member and The Act provides that administrative recordkeeping, that might result from alternate member terms of office proceedings must be exhausted before this proceeding. The record also (§ 982.33); limit the number of parties may file suit in court. Under indicates that a majority of handlers and consecutive terms members and section 608c(15)(A) of the Act, any producers would meet the SBA alternate members may hold to three handler subject to an order may file definitions of small agricultural service two-year terms (§ 982.33); and make with the Secretary a petition stating that firms and small agricultural producers, conforming changes and a correction in the order, any provision of the order, or respectively. the qualifications for nominating any obligation imposed in connection During the 1993–94 marketing year, members (§§ 982.30 and 982.32). The with the order is not in accordance with approximately 25 handlers were amendments are proposed to ease the law and requesting a modification of the regulated under the order. In addition, burden of conducting nomination order or to be exempted therefrom. A there were approximately 950 producers meetings every year and enhance the handler is afforded the opportunity for of hazelnuts in the production area. The Board’s efficiency. The amendments are a hearing on the petition. After the Act requires the application of uniform administrative in nature and would not hearing the Secretary would rule on the rules on regulated handlers. Since impose additional costs on small petition. The Act provides that the handlers covered under the order are businesses. district court of the United States in any predominantly small businesses, the Other recommended amendments to district in which the handler is an order itself is tailored to the size and the order’s administrative procedures inhabitant, or has his or her principal nature of small businesses. Marketing and operations would: Allow Board place of business, has jurisdiction in orders and amendments thereto, are telephone votes to remain unconfirmed equity to review the Secretary’s ruling unique in that they are normally in writing until the next public Board on the petition, provided a bill in equity brought about through group action of meeting (§ 982.37); remove the is filed not later than 20 days after the essentially small entities for their own ‘‘verbatim’’ reporting requirement on date of the entry of the ruling. benefit. Thus, both the RFA and the Act Board marketing policy meetings In accordance with the Paperwork are compatible with respect to small (§ 982.39); allow the Board to accept Reduction Act of 1980 (44 U.S.C. entities. advance assessment payments and Chapter 35), any additional reporting For discussion of the anticipated provide discounts for such payments and recordkeeping requirements that impact on small businesses, the (§ 982.61); and allow the Board to accept might result from the proposed proposed amendments have been voluntary contributions (new § 982.63). amendments would be submitted to the grouped into programmatic categories. These proposed amendments are Office of Management and Budget Amendments concerning the order’s intended to improve the operations of (OMB). The provisions would not be marketing and volume control programs the Board, lessen the administrative effective until after receiving OMB would: Change the name of the burden on Board members and staff, and approval. commodity to ‘‘hazelnuts’’ (§ 982.4); add improve management of the order’s the State of Hawaii to the trade demand financial resources. As such, the Material Issues area and allow the Board to make proposed changes would have The material issues of record changes in the trade demand area, with negligible, if any, economic impact on addressed in this decision are: the approval of the Secretary (§ 982.16); small entities. (1) Whether to change the name of the provide the Board the flexibility to Finally, one amendment would commodity from ‘‘filberts’’ to release up to 15 percent of the average provide the Board with the authority to ‘‘hazelnuts;’’ three year inshell trade acquisitions for establish more up-to-date identification (2) whether the inshell trade desirable carryout (§ 982.40); correct the standards (§ 982.46), which would make acquisition (trade demand) distribution current language that determines order identification and certification area should be expanded to include the handler credit for ungraded hazelnuts provisions consistent with current entire United States; whether the Board, (§ 982.51); establish the bonding rate for industry practices and enable handlers with the approval of the Secretary, deferred restricted obligations at the more flexibility in meeting should be allowed to make changes in estimated value of restricted credits for identification requirements. the trade demand distribution area; and, the current marketing year and allow All of these changes are designed to whether inshell hazelnuts shipped to the Board to use defaulted bond enhance the administration and export markets should be restricted from payments to purchase excess restricted functioning of the order and benefit the importation into all trade demand credits (§ 982.54); and clarify that mail entire industry. Any added costs are not distribution areas; order sales are not exempt from order expected to be significant because the (3) whether to extend the length of requirements (new § 982.57). These benefits of the proposed amendments Board members’ and alternate members’ 30172 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules terms of office to two years, limit the the company name or logo. Further, to the trade demand area through number of consecutive terms which may changing the term would be consistent informal rulemaking procedures. For the be held to three two-year terms, make with public practice because, in 1989, purposes of these findings and conforming changes to the qualifications the hazelnut—not filbert—was declared conclusions, trade demand area is for nominating members, make a the official state nut of Oregon. Record synonymous with inshell trade correction in the weighting of handler evidence indicates that, in the acquisition distribution area. votes, and clarify voting procedures; production area, the tree is generally Under the order’s volume regulations, (4) whether Board telephone votes referred to as a filbert tree while the shipments of inshell hazelnuts to the should remain unconfirmed in writing nuts are referred to as hazelnuts. continental U.S. are limited to a until the next public Board meeting; In recognition of the more prominent prescribed percentage of the industry’s (5) whether to remove the ‘‘verbatim’’ use of the term ‘‘hazelnuts,’’ the Board supply, subject to regulation each reporting requirement on Board recommended that the tree nut defined marketing year. Currently, the marketing policy meetings; as ‘‘filberts’’ in the order and the title of continental U.S. comprises the (6) whether the Board should have the Board, and the term ‘‘filbert/ ‘‘domestic market’’ under the order. All additional flexibility in recommending hazelnut’’ in the order’s title be defined markets outside the continental U.S., final free and restricted percentages; as ‘‘hazelnuts’’ throughout the order and including Hawaii, are currently export (7) whether to provide the Board with the order’s rules and regulations. Thus, markets to which handlers may ship the authority, subject to the approval of the title of the order should be amended inshell hazelnuts without regard to the Secretary, to establish different to read ‘‘Hazelnuts Grown in Oregon volume regulations established under identification standards for inspected and Washington,’’ the definition for the order. This amendment would and certified hazelnuts; filberts should be amended to read, expand the trade demand area to (8) whether to correct the factor used ‘‘Hazelnuts means hazelnuts or filberts include Hawaii, thus, making that state to convert kernel weight to inshell produced in the States of Oregon and part of the ‘‘domestic market.’’ equivalent weight when calculating the Washington from trees of the genus Inshell trade acquisitions are defined volume of hazelnuts withheld for Corylus,’’ and the title ‘‘Filbert Control as the quantity of inshell hazelnuts restricted credit; Board’’ should be changed to ‘‘Hazelnut acquired by the trade (commercial (9) whether the Board should use the Marketing Board.’’ Wherever the term buyers) from all handlers during a estimated value of restricted credits ‘‘filberts’’ appears in Subpart—Order marketing year for distribution in the when establishing bonding rates, and Regulating Handling and Subpart— continental United States. The trade whether to allow the Board to purchase Grade and Size Regulations, it should demand for any given year is based on restricted credits; be changed to ‘‘hazelnuts.’’ Such inshell trade acquisitions during the (10) whether to clarify that mail order changes should be made in the table of preceding three years. The domestic sales are not exempt from order contents and the following sections: inshell market volume is restricted requirements; 982.4, 982.6, 982.7, 982.8, 982.11, under volume regulations. Restricted (11) whether the Board should have 982.12, 982.13, 982.14, 982.15, 982.16, hazelnuts are shelled or exported authority to accept advance assessment 982.18, 982.19, 982.20, 982.30, 982.32, inshell to other countries, or are held in payments, provide discounts for such 982.34, 982.39, 982.40, 982.41, 982.45, satisfaction of the handler’s restricted payments, borrow money, and accept 982.46, 982.50, 982.51, 982.52, 982.53, obligation. voluntary contributions; and 982.54, 982.55, 982.56, 982.57, 982.58, The effect of the first change would be (12) whether any conforming changes 982.61, 982.65, 982.66, 982.67, 982.69, to add Hawaii to the trade demand area. should be made to the order if any or 982.71, 982.86, and 982.101, including When the order was promulgated in all of these proposals were to become Exhibit A. Wherever the term ‘‘filberts/ 1949, ‘‘trade demand’’ was defined as effective. hazelnuts’’ appears in Subpart— the quantity of filberts/hazelnuts Administrative Rules and Regulations, it acquired for ‘‘distribution in the Findings and Conclusions should be changed to ‘‘hazelnuts.’’ Such continental U.S., Alaska, Hawaii, Puerto The findings and conclusions on the changes should be made in the Rico and the Canal Zone; except that material issues, all of which are based following sections: 982.446, 982.450, there may also be considered in the on evidence provided at the hearing and 982.452, 982.453, 982.455, 982.456, making of such computations such the record thereof, are: 982.466, 982.468, and 982.471. Finally, acquirements for distribution in Canada (1) The terms ‘‘filberts’’ and ‘‘filberts/ references to ‘‘F/H Form * * *’’, or Cuba, whenever the Board is of the hazelnuts’’ should be revised to read followed by a letter or number, or both, opinion that such distribution may be ‘‘hazelnuts.’’ Section 982.4 defines should be changed to read ‘‘H Form’’, made to the particular country at prices filberts to mean filberts or hazelnuts followed by a letter or number, or both to handlers approximating such prices produced in the States of Oregon and sections 982.450, 982.452, 982.453, on distribution in the Continental Washington from trees of the genus 982.454, 982.455, 982.456, 982.460, United States.’’ (14 FR 5657, September Corylus. 982.466, and 982.468. 15, 1949.) This definition was amended Over the years, the use of the term (2) In § 982.16, Inshell trade in 1959 (24 FR 5305, June 30, 1959) to ‘‘filberts’’ has lessened both within and acquisitions, the inshell trade demand include only the continental U.S. outside the industry. ‘‘Hazelnuts’’ is area should include all 50 states of the because it was determined that the other widely used in the industry to describe United States, and not just the areas would better serve the industry as the tree nut covered under the order and continental United States, and the export outlets for restricted hazelnuts. in international marketing efforts. Board, with the Secretary’s approval, The Board now recommends that all 50 While some handlers continue to refer should be authorized to make changes states be included in the trade demand to the product as filberts, record in the distribution area. Therefore, this area. evidence indicates that changing the amendment would make two changes in However, testimony presented at the name in the order will not have an the order: (1) Include all 50 states of the hearing did not provide any economic adverse effect on those handlers who United States in the trade demand area, analysis, data, or other persuasive have traditionally referred to the thus, adding Hawaii, and (2) provide reasons that would support adding product as ‘‘filberts’’ or use the term in authority to the Board to make changes Hawaii to the trade demand area. The Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30173 Department believes that the addition of Transportation modes and costs for Record evidence also indicates that Hawaii to the trade demand area should getting product to the country or region; the Board could recommend to the be evaluated on the same bases as other non-restrictive or at least neutral import Secretary that a country or region be markets which might be added to the and customs requirements; marketing removed from the trade demand area if trade demand area. Should the second infrastructure; consumption habits, desired marketing results are not part of this material issue, as described holidays or cultural factors to which achieved. Indicators of failure could below, be approved in this formal marketing efforts could be tied; include: The volume of sales of rulemaking procedure, the Board would economic outlook in the country; and hazelnuts in the new market were below be able to recommend adding Hawaii to other financial and economic factors. expectations; the expected prices in the the trade demand area through informal The record evidence indicates that the new market were not sustained; or the rulemaking procedures. Thus, this characteristics of markets in some new market resulted in a negative or recommended decision denies that countries are very close to market depressing affect on the marketing of portion of the second material issue characteristics in the United States. For hazelnuts in the remainder of the trade which recommends adding Hawaii to instance, Canada, an export market demand area. the trade demand area. country, is an example of a market that The record does not suggest a The second change would provide could be reviewed in a Board minimum amount of time that a new authority to the Board to make changes recommendation to expand the trade country would be in the trade demand to the trade demand area, through demand area. There is a considerable area before the Board could recommend informal rulemaking procedures. The difference in price between hazelnuts its removal to the Secretary. The Board Board now believes that it is in the best sold in the U.S. and the same product analyzes and recommends its marketing interest of the industry that the Board sold in Canada. Inshell hazelnuts are policy to the Secretary on an annual have the flexibility to respond to marketed primarily during the end-of- basis. Such analysis should include a changing market conditions by adding a the-year holiday season—which is also complete and thorough review of any country or marketing region, when widely celebrated in Canada. The changes to the trade demand area that appropriate, to the trade demand area. standard of living and disposable were made during the previous As currently provided, changes to the income levels in Canada are similar to marketing season. Any recommendation trade demand area require formal those in the U.S. Thus, the record to remove a country or region from the rulemaking procedures which include a indicates that, for instance, the Board trade demand area would be reviewed public hearing, a recommended could recommend including Western by the Export Committee and decision, an industry referendum and a Canada, or possibly all of Canada, in the recommended to the Board. Discussions final rulemaking decision. However, trade demand area. Other examples of for such a recommendation would be marketing policy decisions need to be countries or areas which could be held at meetings open to industry made on a yearly basis, particularly considered for inclusion in the trade members and the public prior to any those decisions that require demand area include Puerto Rico, and recommendation to the Secretary. Thus, computation to determine the amount of all or part of Mexico. it is apparent that implementation of inshell hazelnuts available to be sold The Board would necessarily need to such a recommendation would preclude without restriction. The formal consider the effect adding a new action to remove a country during the rulemaking procedure does not provide country or region to the trade demand same marketing year it was added to the the Board with the flexibility or the area would have on the U.S. inshell trade demand area. timeliness it needs to respond to market. If the inshell supply designated A conforming change should be made changing markets in other countries. for the trade demand area is not in paragraph (b) of § 982.52 Disposition Informal rulemaking authority, which increased to meet the expected demand of restricted filberts. This amendment requires a Board recommendation and increase in new countries or regions, the was listed as proposed material issue 9 Secretarial approval, would enable the inshell supply available to the U.S. in the Notice of Hearing but is discussed Board to make more timely responses to market would be reduced. Thus, the in this material issue as a conforming changing market conditions in countries addition of one or more new inshell change. or regions outside the U.S. markets, without an increase in inshell Testimony submitted at the hearing The record indicates that a supply, could affect the amount of indicates that free hazelnuts shipped to recommendation to add a country or inshell hazelnuts available for shipment the trade demand area are marketed at region to the trade demand area would to domestic U.S. markets. prices higher than export prices. There first be considered by the Board’s Export Any Board recommendation to shift a is concern that exported inshell Committee when it develops and country or region from the export hazelnuts not be re-exported back to the recommends to the Board an annual market to the trade demand area would U.S. at prices less than domestic market export marketing policy. Changes in the likely result in a corresponding prices. The fourth sentence of trade demand area would then be recommendation regarding the free and § 982.52(b) currently provides that considered by the Board and restricted volumes shipped. The Board exporting handlers obtain certification recommended to the Secretary. Notice should include the projected volume for from buyers that they will not re-export of these meetings would be made to the new country or region in inshell inshell hazelnuts back into the U.S. hazelnut growers and handlers in trade acquisitions when determining Record evidence indicates that, because Oregon and Washington and the free and restricted percentages in its foreign countries may be added to the meetings would be open to all members marketing policy recommendation to trade demand area, inshell export sales of the industry. the Secretary. For instance, if Canada is to countries not in the trade demand According to the hearing record, a added to the trade demand area, inshell area should not be exported or shipped Board recommendation to add a country shipments to Canada would be included onward to any country designated in the or region to the trade demand area in inshell trade acquisitions. trade demand area. Thus, certifications would be based primarily on the ‘‘Export’’ sales would be only signed by importers in export countries potential market conditions and hazelnut sales to those countries or should include provisions that exported opportunities in the country or region. regions that are not designated as being inshell hazelnuts not be exported again Market considerations could include: in the trade demand area. to any country or region that is part of 30174 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules the trade demand area. Inshell hazelnut administrative staff. Nomination Board. The current language says that if shipments may be shipped from one meetings, industry voting and ballot a handler eligible to vote for the fourth trade demand area country or market to counting, and resultant certification handler position handles less than one other countries or markets that are also paperwork have been required of the ‘‘percent,’’ the handler’s vote should be in the trade demand area. Based on industry and the Board every year since weighted as one ton. The term hearing testimony, the United States is 1959. When two-year terms were in ‘‘percent’’ does not have any meaning one region and should not be effect from 1959 to 1986, the terms were without a reference as a percent of subdivided into two or more regions for staggered, so that half the members were something. Testimony on this provision the purpose of removing some states nominated and selected each year. in the 1986 formal rulemaking from the trade demand area. Staggered terms required that proceeding shows that the intent of the The proposed amendments should nomination referenda be held each year industry was for the term to be ton and provide the Board with the flexibility to and, thus, did not relieve the burden on not percent. This error inadvertently take advantage of changing market industry members or the Board’s occurred between publication of the conditions and do so on a timely basis. administrative staff. proposed rule (50 FR 42545, October 21, Thus, § 982.16 should be changed to: (1) This amendment would establish two- 1985) and final rule (51 FR 29547, Include all states in the U.S. in the year terms of office for Board members August 19, 1986) in the previous formal inshell trade acquisition distribution and alternate members with all terms rulemaking proceeding in 1985/86. The area; and (2) allow the Board, with the beginning and ending at the same time. Board has recognized the intent of the approval of the Secretary, to add or Thus, the nomination process would be provision and has correctly recorded remove countries or regions to or from conducted only once every two years, handlers’ weighted votes when the trade demand area. The proposed thereby reducing by half the tabulating votes for the fourth handler amendment would also make administrative burden on industry member and alternate member. Thus, in corresponding changes in the first members and the Board’s administrative the third sentence of paragraph (c) of sentence of paragraph (b) of § 982.52 to staff. Record evidence indicates that, § 982.32, the term ‘‘percent’’ should be include all states of the United States in because of the infrequent turnover of replaced with the term ‘‘ton.’’ the trade demand area and add other new members, the lack of staggered Paragraph (c) of § 982.32 should also countries or regions to the trade demand terms should not affect the continuity of be amended by changing the last area, as recommended by the Board and Board membership. sentence regarding the casting of votes Also, record evidence indicates that approved by the Secretary. Likewise, a for the fourth handler member and corresponding change should be made moving to two year terms of office alternate member. Current paragraph (c) in the fourth sentence of paragraph (b) would be beneficial to the Board’s provides that handlers vote for one to prevent inshell export sales from public member and alternate public candidate and the candidate receiving being exported to countries or regions member. The timing for annual the highest number of votes shall be the that are included in the trade demand nomination and selection of the Board’s fourth handler member nominee and the area. public member prevents that member (3) In paragraph (b) of § 982.33, from being an active and effective candidate receiving the second highest Selection and term of office, the length participant on the Board. Currently, the number of votes shall be the fourth of Board member and alternate member public member and alternate is handler alternate member nominee. terms of office should be changed from nominated at the first meeting of the This proposal provides that each one to two years and the number of new Board, usually in late August. eligible handler shall cast two separate consecutive terms a member could serve However, by the time the public votes: one for the fourth handler should be limited to three terms. member and alternate is subsequently member and one for the fourth handler Conforming changes should be made in selected by the Secretary, many alternate member. The candidates who provisions covering the qualifications of important Board activities have been receive the highest numbers of votes in handlers nominating handler members completed for the year. The proposed each category would be the nominees. (§ 982.30(b)) and weighting handler amendment to establish two-year terms Currently, paragraph (b) of § 982.33 votes in the nomination process of office would enable the public limits the number of consecutive one (§ 982.32(b)), and a minor change member and alternate public member to year terms a member may serve to six should be made in § 982.32(a) to remove more actively participate in Board terms. To maintain the order’s intent the reference to initial Board members. decisions because these members would that members and alternates should not Finally, when nominating the fourth be on the Board for a two-year period. serve more than six consecutive years, handler member and alternate member, If the term of office is changed from paragraph (b) should be amended to as provided in § 982.32(c), a correction one to two years, changes also should be provide for a maximum of three in the criteria used to calculate a made to three provisions regarding consecutive two-year terms of office. If handler’s minimum weighted vote Board membership. Sections 982.30 and approved in referendum and by the should be made and the voting 982.32, regarding establishment of the Secretary, the three term limit would procedure should be amended to Board and nomination of Board begin with the first nominations held provide that eligible handlers vote for members, respectively, should be after completion of this formal both the fourth member and fourth amended to provide that nominations of rulemaking process. Thus, any standing alternate member. the three largest handler members be Board members and alternates The term of office for Board members based on the handlers’ tonnage during nominated and selected for the first two and alternates has been amended twice the previous two marketing years. year term would be eligible to serve two since promulgation of the order. The Currently, nominations are based on the additional terms, regardless of past record indicates the reason for this previous year’s handled volume. service. Also, this amendment would amendment to change the term of office Paragraph (c) of § 982.32 contains an not restrict a member who has served from one to two years is to relieve the error in the wording which specifies the three consecutive terms from then administrative burden that yearly minimum weighted vote handlers may serving three consecutive terms as an nominations procedures place on cast in nominating the fourth handler alternate member or for an alternate industry members and the Board’s member and alternate to serve on the member who has served three Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30175 consecutive terms from then serving The record indicates that telephone Thus, § 982.39(i) should be amended three consecutive terms as a member. votes should be taken only on issues to provide that the Board furnish the The Board recommended a minor that are known to be non-controversial. Secretary a report of the proceedings of wording change in § 982.32(a) which If an issue is known to have any one each meeting of the Board held for the would remove the reference to ‘‘initial’’ member or industry group against it, a purpose of marketing policy Board members as those members telephone vote on the issue would not recommendations. serving prior to the amendment of the be taken and a public meeting would (6) In paragraph (c)(2) of § 982.40, order. This change would simplify the have to be called for consideration of Marketing policy and volume wording of the paragraph and make it the issue. regulation, the Board should be consistent with the changing nature of The record also indicates that a vote provided some flexibility in Board membership. The proposed cast by facsimile transmission is recommending final free and restricted amended paragraph would provide that considered a vote by ‘‘other means of percentages. In the 1985–86 amendment members and alternate members of the communication.’’ While a facsimile of the order, development of the Board’s Board serving immediately prior to the transmission produces a piece of paper annual marketing policy and volume effective date of this amended subpart which is received and held by the Board regulation action were established to shall continue to serve until their staff, the vote would still have to be follow specific procedures and formula respective successors have been confirmed at the next public Board computations. This amendment would selected. meeting. enable the Board to better respond to Thus, § 982.33 should be amended to Thus, § 982.37(b) should be amended market conditions when recommending provide two year terms of office for to provide that Board votes cast by the final free and restricted percentages. Board members and alternate members. telephone, telegraph or other means of On or before November 15, the Board Sections 982.30 and 982.32 covering communication shall be confirmed at meets to recommend to the Secretary, nominating qualifications, weighting the next regularly scheduled Board the establishment of interim final and handler votes, voting procedures, and meeting and that such confirmation final free and restricted percentages. consecutive terms should also be shall require ten concurring votes. The interim final percentage results in changed for consistency and conformity (5) In paragraph (i) of § 982.39, Duties, the release of 100 percent of the inshell with two-year office terms. the requirement that the Board furnish trade demand previously computed by (4) In paragraph (b) of § 982.37, verbatim reports of its marketing policy the Board. Paragraph (c)(2) of § 982.40 Procedure, the requirement that Board meetings to the Secretary should be now requires that the final percentages votes by telephone, telegraph or other amended to require that summary release an additional 15 percent of the means of long distance communication reports of such meetings be furnished to average of the preceding three years’ be confirmed in writing should be the Secretary. trade acquisitions of inshell hazelnuts amended to provide that such votes The promulgation documentation for desirable carryout. remain unconfirmed until the next provided that a ‘‘complete report of the This amendment focuses on the public Board meeting. proceedings’’ of the Board meeting mandatory release of the final 15 The Board generally meets twice a establishing a marketing policy percent. Record evidence indicates that year. At least once each year over the recommendation be reported to the the mandatory release of the entire last five years, the Board has found it Secretary (14 FR 5669, September 15, tonnage resulting from the additional 15 necessary to vote on an issue by 1949). Because the Board in 1959 was percent can sometimes be harmful to the telephone. The issue has been the final providing verbatim reports of marketing market and may not always be in the budget which must be submitted to the policy deliberations, the verbatim best interest of the industry. For Department at a time when there are no requirement was added to the reporting instance, the mandatory release of the scheduled Board meetings. requirement (24 FR 4173, May 23, 1959) final 15 percent could place an excess Record evidence indicates that it is and the requirement was moved to supply of hazelnuts on the market and difficult to obtain written confirmation paragraph (5) of § 982.39 Duties (24 FR result in a weak market. Market of all telephone votes cast by Board 5307, June 30, 1959). The amendment conditions may be such that release of members. All telephone votes must be stated that only that portion of a a smaller final percentage would be a confirmed, and written confirmation meeting dealing directly with marketing wiser marketing policy. This must be unanimous. Even though a policy discussions be reported verbatim. amendment provides the Board with ballot is mailed to each member, and However, the record indicates that that flexibility when recommending the follow-up calls are made to those who verbatim reports are impractical because final free and restricted percentages. have not submitted their written ballot, either a court reporter has to be In addition to complying with the some members fail to respond. contracted or a recording would have to provisions of the marketing order, the Because of such confirmation delays, be exactly transcribed by a Board Board must also consider the some telephone votes have been employee. Either of these alternatives Department’s 1982 ‘‘Guidelines for confirmed at the next public Board requires an extra expense for the Board Fruit, Vegetable, and Specialty Crop meeting. At these meetings, the and results in a delay in completing the Marketing Orders’’ (Guidelines) when members confirm their original vote and report. recommending marketing policy reaffirm their position. This procedure This amendment would establish that computations. Volume control should be on the record and so recorded the Board tape record all meetings and regulation provides the industry a in the committee minutes. Reaffirmation then summarize the proceedings using means of collectively limiting the must be unanimous. The record the tape recording to ensure a complete supply of inshell hazelnuts available for indicates that, under the proposed and thorough report. The record sale in the trade demand area. The amendment, if any member were to testimony reports that this process Guidelines provide that the trade change his or her original vote, the issue should take considerably less time and demand area have available a quantity would be debated again and a new vote be less costly than making a direct equal to at least 110 percent of recent by all committee members would be transcript of the recording. This revised years’ sales in the trade demand area taken. The second vote would require procedure is expected to maintain the before volume regulations can be passage by a simple majority. accuracy of the meeting report. implemented. This provides for 30176 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules plentiful supplies for consumers and for Under the proposed amendment, the handlers are required to withhold from market expansion while retaining a Board may prescribe other methods of handling a quantity of hazelnuts equal mechanism for dealing with oversupply identification of restricted obligation to the restricted obligation resulting situations. hazelnuts. The record indicates that the from that shipment. Hazelnuts so The hazelnut industry in Oregon and Board currently allows handlers to withheld may be exported inshell or Washington has satisfied the carryover hazelnuts which are reported shelled. The withholding obligation also Guidelines’ 110 percent requirement. as either undeclared, declared may be deferred. Section 982.54 Pursuant to § 982.40(b), each year the restricted, or declared free. The provides that a handler may post a bond Board may, for market expansion hazelnuts are reported as one or the as a guarantee that the handler will purposes, increase inshell trade demand other, but do not have to be specifically eventually fulfill the handler’s restricted by an amount up to 25 percent of the so marked. obligations. Hearing testimony indicates previous 3 years’ average inshell trade These relaxed identification that the provision establishing the acquisitions. In addition, the Board procedures would enable handlers to bonding rate currently specified in the must add to the adjusted inshell trade continue to meet identification order is too high and too burdensome on demand a total of 15 percent of the 3- requirements for restricted obligation handlers under present marketing year inshell trade acquisition average to hazelnuts without setting aside specific, conditions. meet the desirable carryout requirement identifiable lots. The amended Handlers may either shell or export of § 982.40(c)(2). This more than meets procedures would bring the marketing inshell as many hazelnuts as they wish, the 110 percent requirement. order provisions up-to-date with current but they are limited in the amount of Over the years, the authority for these industry practices. Thus, § 982.46(b) inshell hazelnuts they can sell as free increases has caused the Board to should be amended to provide that tonnage in the trade demand area when exceed the Guidelines’ 110 percent hazelnuts inspected and certified for volume regulations are in effect. Volume requirement. It is possible that the free and restricted use shall be regulations under the order require that, Board could choose to recommend a identified as prescribed by the Board. prior to or upon shipping inshell market expansion increase and a final (8) In paragraph (a) of § 982.51, hazelnuts to the trade demand area, free and restricted percentage increase Restricted credit for ungraded inshell handlers shall withhold from handling that totalled less than the Guidelines’ hazelnuts and for shelled hazelnuts, the a quantity of hazelnuts equal to the 110 percent requirement. However, current language that authorizes handler restricted obligation resulting from that based on present Board practices, such credit for ungraded hazelnuts should be shipment. Hazelnuts so withheld may a recommendation is not expected. Any amended to delete an incorrect and be certified merchantable, inspected Board recommendation that totalled less misleading term. ungraded, or certified shelled. The than the 110 percent requirement could This provision allows handlers to domestic inshell market is extremely be referred by the Secretary back to the receive merchantable credit for seasonal with most of the shipments Board. ungraded inshell hazelnuts they hold to occurring in October or early November, Thus, § 982.40(c)(2) should be meet their restricted obligation. The the same period when hazelnuts are amended to provide that the final free hazelnuts must be inspected to harvested and delivered to handlers. and restricted percentages may release determine kernel weight, which is During this period, handlers do not have up to an additional 15 percent of the converted back to an inshell equivalent. enough hazelnuts certified, inspected, average of the preceding three years’ The industry uses a conversion factor of or shelled to meet their restricted trade acquisitions of inshell hazelnuts 60 percent shell or waste product and obligations. Therefore, handlers use the for desirable carryout. 40 percent kernel weight. Thus, it takes bonding provisions in the order to defer (7) In paragraph (b) of § 982.46, 2.5 pounds of inshell hazelnuts to make a large part of their obligations. Inspection and certification, specific 1 pound of hazelnut kernels—a As domestic use of inshell hazelnuts identification practices for the handling conversion factor of 2.5 to 1. has declined and production has and withholding of restricted obligation However, the first sentence of increased, the percent of the crop going hazelnuts should be amended to paragraph (a) of § 982.51 states that the to the primary inshell market has provide that all inspected and certified conversion factor is 2.5 ‘‘percent.’’ The dropped. For example, in the 1993–94 hazelnuts shall be identified as term ‘‘percent’’ is not correct and, in marketing season, the free percentage prescribed by the Board. fact, greatly reduces the conversion was only 13 percent—resulting in a Traditionally, hazelnuts were factor. If the conversion factor was to be restricted obligation nearly 6.7 times the inspected and certified as either free or represented as a percentage, it would be quantity handled for the free market. restricted before or during handling, or 250 percent. This error evidently Such a high restricted obligation-to- before being set aside as withheld for occurred when § 982.51 was amended handling ratio makes a bonding rate restricted obligation. Paragraph (b) in 1986. The Board and industry based on the price for inshell hazelnuts provides that handlers use seals, handlers have been operating on the very burdensome. Such a high bonding stamps, tags or other identification fixed correct conversion factor of 2.5 to 1. rate is not necessary as long as the to the containers to identify lots set Thus, the language that specifies bonding rate reflects the difference aside as either free or restricted handler credit for ungraded hazelnuts in between the domestic inshell price and hazelnuts. However, the record § 982.51 should be amended to correct the returns available in authorized indicates that, since 1975, industry the conversion factor as stated herein. markets for restricted hazelnuts such as practices have changed significantly and (9) In § 982.54, Deferment of restricted inshell exports or shelling. now allow handlers to substitute fresh obligation, several changes and Inshell exports have been a large and hazelnut lots for free and restricted lots conforming changes should be made to growing market for restricted hazelnuts. that have been set aside. It is no longer provisions regarding bonding values In some years, the average reported necessary for handlers to meet their and rates, the use of defaulted bond value for inshell exports has exceeded volume control obligations by funds, and the Board’s flexibility when domestic quotations for domestic sales maintaining restricted lots that are dispensing defaulted bond funds. of U.S. No. 1 large hazelnuts. This sealed, stamped, tagged, or otherwise so Prior to or upon shipping inshell apparently results from a willingness of identified. hazelnuts to the trade demand area, some foreign buyers to pay a significant Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30177 premium for the largest sizes of from voluntarily defaulting on their who use the bonding authority would hazelnuts. Thus, restricted disposition bond. benefit from the reduced cost of the credits earned by exporting inshell Paragraph (d) requires the Board to lower bonding rates. hazelnuts may reflect little or no loss use the funds collected from defaulted Therefore, paragraphs (b), (c) and (d) compared to the domestic inshell bond payments to purchase quantities of of § 982.54 should be amended to market. certified merchantable hazelnuts on provide, respectively, that: the bonding The order authorizes the transfer of which the restricted obligations have value be determined by multiplying the restricted disposition credits between been met. To make paragraph (d) deferred restricted obligation poundage handlers, and some handlers use this consistent with amended paragraph (c), by the applicable bonding rate; the authority. the Board would use defaulted bond bonding rate be based on the estimated The record shows that members of the funds to purchase restricted credits from value of restricted credits; and the Board Board, particularly its handler members, handlers. use handlers’ defaulted bond funds to have knowledge of the marketing Paragraph (e) provides that purchase restricted credits. Conforming opportunities in various restricted unexpended funds resulting from changes should also be made to outlets and knowledge of the transfer of defaulted bond payments remaining at paragraphs (e) unexpended sums and (f) restricted disposition credits. Thus, the the end of the marketing year would be transfer of purchases. Board should be capable of using these used by the Board to pay its expenses (10) Section 982.57, Exemptions, factors to calculate an appropriate and in the purchase of hazelnuts as should be amended to clarify that mail bonding rate that is financially provided in paragraph (d). Consistent order sales are not exempt from order acceptable but not so low as to with amended paragraph (d), a requirements. encourage handlers to default on their conforming change would be made in This provision was amended in 1986 bonds. amended paragraph (e) to provide that to clarify that hazelnuts sold directly to The proposed amendments would unexpended funds resulting from end users (consumers) at a grower’s change the method by which the Board defaulted bond payments remaining at ranch or orchard, or at roadside stands determines the rate of the bond. the end of the marketing year could be and farmers markets are exempt from Paragraphs (b), (c), (d), (e) and (f) of used by the Board to purchase restricted regulatory and assessment provisions of § 982.54 would be amended to replace credits, rather than merchantable the order. No testimony was provided at terminology that ties bonding rates to hazelnuts, on which the restricted the amendment hearing in 1985 to the value of quantities handled or obligation has been met. certified for handling. Instead, bonding The last sentence in paragraph (e) suggest that mail order sales should be rates would be tied to the estimated provides that any balance of funds exempt from order regulations. value of restricted credits as established collected from defaulted bond However, some growers and handlers in by the Board. A bonding rate based on obligations remaining at the end of the the industry believe that the exemption the value of restricted disposition marketing year after payment of Board provision applies also to mail order credits should provide adequate expenses, including administrative costs sales. protection against default and would be and the purchase of hazelnuts, would be To help correct this misinterpretation, much less burdensome. returned pro-rata to all handlers. the Board proposed that § 982.57 be Paragraph (b) provides that the However, experience indicates that no amended by adding a sentence at the bonding value for each handler be such unused funds have remained at the end of paragraph (b) to clarify that mail established by multiplying the deferred end of recent marketing years to be order sales are not considered exempt restricted obligation poundage bearing refunded to handlers. Bond payments from order requirements. the lowest bonding rate by the based on restricted credit values are The added sentence that appeared in applicable bonding rate. Under the expected to result in fewer defaults and the Notice of hearing for this rulemaking proposed amended paragraph (b), the less default funds collected. Thus, a (59 FR 9428; February 28, 1994) bonding value would be determined by marketing year that would produce an included a phrase that could cause multiplying the deferred restricted excess of defaulted bond funds is not further confusion among industry obligation poundage by the applicable likely to occur. In addition, paragraph members. The proposed sentence in the bonding rate. (b) of § 982.62 provides Board authority Notice of hearing reads, ‘‘Mail order Paragraph (c) provides for a bonding to return excess funds at the end of each sales to destinations outside the area of rate for each pack withheld which is the marketing year. production are not considered to be amount per pound as established by the Paragraph (f) currently provides that exempt sales under this part.’’ The Board. Under the proposed amended merchantable hazelnuts purchased by phrase ‘‘to destinations outside the area paragraph (c), the Board would establish the Board as provided in paragraph (d) of production’’ could be interpreted to the bonding rate based on the Board’s shall be turned over to handlers who mean that mail order sales to estimated value of restricted credits. have defaulted on their bonds for destinations inside the States of Oregon Record evidence indicates that the value disposal by the handlers as restricted and Washington would be exempt from of credits should be based on the value hazelnuts. A conforming change would order requirements. However, this is not of hazelnuts in all markets—restricted be made in amended paragraph (f) to consistent with Board policy. as well as free. Because restricted provide that the restricted credits It is current Board policy that no market hazelnuts usually have less purchased by the Board under amended exemptions are authorized for mail market value than free hazelnuts, the paragraph (d) would be turned over to order sales, regardless of destination. credit value usually is less than the those handlers who have defaulted on Hearing testimony indicated that the actual market value of free hazelnuts. their bonds for liquidation of their Board has always considered that no Thus, a bond based on credit value restricted obligation. mail order sales are exempt from order would lower the value of the bond, The record indicates that some small regulations. Testimony further indicates making it a more acceptable burden for handlers only shell hazelnuts and have that this amendment is not a change in handlers. The record also indicates that no need to use the bonding authority. policy. Thus, the proposed clarifying a bond value based on credits would be This proposed amendment would have sentence should read: ‘‘Mail order sales high enough to discourage handlers no effect on these handlers. All handlers are not exempt sales under this part.’’ 30178 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules Therefore, paragraph (b) of 982.57 procedures to implement the borrow funds for a specified promotion should be amended by adding the amendment would be discussed by the project or program. The record also clarification that mail order sales are not Board in a public meeting and suggests that borrowed funds should be exempt sales under the order. recommended to the Secretary for paid back within the same marketing (11) A new paragraph (b) of § 982.61, approval through informal rulemaking year, so as not to encumber future Assessments, should be established to procedures. Boards with the financial obligations of allow the Board to accept advance To encourage advance payment, the its predecessors. assessment payments, provide discounts Board recommended that advance The Board proposes that a new for such advanced payments, and assessment payments be discounted. § 982.63, Contributions, be established borrow funds. Also, a new § 982.63 Record evidence indicates that the to provide the Board with the authority Contributions, should be established to amount of discount could be closely to accept contributions. Such allow the Board to accept voluntary tied to prevailing commercial bank contributions would be used only to pay contributions for payment of research, interest rates. A discount assessment for production research, market research promotion, and market development rate based on commercial bank interest and development, and market activities. rates would encourage handlers who promotion programs, including paid The marketing order’s fiscal period pay advanced assessments because they advertising. Such research and begins July 1, which is three months would not lose more money than they development programs would be before the hazelnut harvest and four would accrue if their advanced designed to improve or promote the months before receipt of assessment assessment payment was held in a payments for the new marketing year. commercial bank interest bearing marketing, distribution, consumption or During the initial four months, the account. Discounted assessment efficient production of hazelnuts. The Board’s access to funds is limited. The payment opportunities should be Board would not be able to accept first proposed amendment is intended available to all handlers throughout the contributions that might have to increase the Board’s ability to obtain production area. stipulations or other provisos on the funds on a temporary basis early in the The record confirms that a decision to expenditure of contributed funds. Thus, marketing year. While marketing order accept advance assessment payments the Board would have complete control reserve funds may be used to pay for and offer discounts for such payments over the expenditure of contributed planned research and promotion would be made at public meetings open funds. The record indicates that the programs and other administrative to all industry members. Any additional Board has not received contribution obligations, record evidence indicates administrative and operating procedures offers but would like the authority to that the Board would prefer to accept needed for the collection of advance accept contributions in the future advance assessment payments or borrow assessment payments and the should they be offered. funds rather than draw from the order’s calculation of appropriate advance The record also indicates that the reserve funds to pay for financial payment discounts should be proviso specifying contributions be free obligations that might occur prior to the recommended by the Board to the from any encumbrances by the donor is accumulation of assessment funds. Secretary for approval. The record not intended to prevent the Board from The second amendment would allow evidence indicates that the Board’s entering into joint promotional the Board to increase funds—through administrative staff has the capability to programs with other agencies. However, contributions—to pay expenses incurred assure that advance assessment funding for such joint programs may not under § 982.58, Research, promotion payments and borrowed funds would be come from donations which specify the and market development. A minor properly budgeted and expended for the intended use of the donated funds. change would be added to § 982.52 to authorized purposes for which they Therefore, § 982.61 should be make that provision consistent with the would be collected. amended by adding a new paragraph (b) proposed new paragraph. The record This recommendation would be that provides the Board with the indicates that these amendments are not established by designating the current authority to collect advance assessment proposed in response to any specific assessment provision as paragraph (a) payments, offer discounts for such program or current need. and adding a new paragraph (b) to Testimony indicates that with access provide that the Board should have the payments, and borrow money to provide to additional funds the Board would authority to offer handlers the funds for administration of the order have the opportunity to enter into opportunity to pay assessments in during the early months of the significant marketing or promotional advance and receive a discount on such marketing period. Also, a new § 982.63, programs in conjunction with other assessments paid. New paragraph (b) Contributions, should be established to commodity groups. Likewise, the Board would provide the Board with authority, provide the Board with the authority to would have the ability to meet with Secretarial approval, to borrow accept contributions, provided that such unforeseen increases in administrative funds early in the marketing year. Such contributions are used to pay expenses obligations that may occur at the start of borrowed funds would be used to meet incurred pursuant to § 982.58 and are a marketing year. While such program or fiscal needs as described free of any encumbrances by the donor. promotional opportunities or emergency above. A conforming change should be made to needs have not occurred in the past, the The record indicates that funds § 982.58, adding contributions as a Board believes it is important that the should be borrowed from lending source of funds that may only be used Board have the ability to accrue institutions rather than from industry to pay research, promotion and market additional funds, if needed. handlers. The Board would make the development expenses. Record evidence does not provide decision to borrow funds based on (12) The Department proposed in the guidelines or procedures as to how the recommendations of the appropriate public hearing to make such changes as Board would announce and collect committee that establishes the need for are necessary to conform with any advanced assessment payments or the borrowed funds. For example, the amendment that may result from the borrow funds. The record does indicate, Executive Promotion Committee and the hearing. This proposal was supported at however, that after approval of the Promotion Committee could the hearing without opposition. Record proposed amendment, guidelines and recommend that the Board should evidence supports these changes. Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30179 Rulings on Briefs of Interested Persons PART 982ÐFILBERTS/HAZELNUTS § 982.32 Initial members and nomination of successor members. The presiding officer of the hearing GROWN IN OREGON AND (a) Members and alternate members of set April 8, 1994, as the final date for WASHINGTON the Board serving immediately prior to filing briefs with respect to the evidence 1. The authority citation for 7 CFR the effective date of this amended presented at the hearing and the part 982 continues to read as follows: subpart shall continue to serve on the conclusions which should be drawn Board until their respective successors therefrom. No briefs were received. Authority: 7 U.S.C. 601–674. have been selected. 2. In part 982 all references to (b) Nominations for successor handler General Findings ‘‘filbert’’, ‘‘filberts’’, ‘‘filbert/hazelnut’’, members and alternate members ‘‘filberts/hazelnuts’’ are revised to read Upon the basis of the record, it is specified in § 982.30(b) (1) through (3) as ‘‘hazelnut’’, ‘‘hazelnuts’’, ‘‘hazelnut’’, found that: shall be made by the largest, second and hazelnuts’’, respectively. (1) The findings hereinafter set forth largest, and third largest handler are supplementary to the previous 3. Section 982.4 is revised to read as determined according to the tonnage of findings and determinations which were follows: certified merchantable hazelnuts and, made in connection with the issuance of § 982.4 Hazelnuts. when shelled hazelnut grade and size the marketing agreement and order and regulations are in effect, the inshell each previously issued amendment Hazelnuts means hazelnuts or filberts produced in the States of Oregon and equivalent of certified shelled hazelnuts thereto. Except insofar as such findings (computed to the nearest whole ton) and determinations may be in conflict Washington from trees of the genus Corylus. recorded by the Board as handled by with the findings and determinations set each such handler during the two forth herein, all of the said prior 4. Section 982.16 is revised to read as follows: marketing years preceding the findings and determinations are hereby marketing year in which nominations ratified and affirmed; § 982.16 Inshell trade acquisitions. are made. (2) The marketing agreement and Inshell trade acquisitions means the (c) Nominations for successor handler order, as amended, and hereby proposed quantity of inshell hazelnuts acquired member and alternate handler member to be further amended, and all of the by the trade from all handlers during a positions specified in § 982.30(b)(4) terms and conditions thereof, will tend marketing year for distribution in the shall be made by the handlers in that to effectuate the declared policy of the continental United States and such category by mail ballot. All votes cast Act; other distribution areas as may be shall be weighted according to the (3) The marketing agreement and recommended by the Board and tonnage of certified merchantable order, as amended, and as hereby established by the Secretary. hazelnuts and, when shelled hazelnut proposed to be further amended, 5. Section 982.30 is amended by grade and size regulations are in effect, regulate the handling of hazelnuts revising paragraphs (a), (b)(1), (b)(2), the inshell equivalent of certified grown in the production area in the and (b)(3) to read as follows: shelled hazelnuts (computed to the same manner as, and are applicable only nearest whole ton) recorded by the to, persons in the respective classes of § 982.30 Establishment and membership. Board as handled by each handler commercial and industrial activity (a) There is hereby established a during the two marketing years specified in the marketing agreement Hazelnut Marketing Board consisting of preceding the marketing year in which and order upon which a hearing has 10 members, each of whom shall have nominations are made. If less than one been held; an alternate member, to administer the ton is recorded for any such handler, the (4) The marketing agreement and terms and provisions of this part. Each vote shall be weighted as one ton. order, as amended, and as hereby member and alternate shall meet the Voting will be by position, and each proposed to be further amended, are same eligibility qualifications. The 10 eligible handler can vote for a member limited in their application to the member positions shall be allocated as and an alternate member. The person smallest regional production area which follows: receiving the highest number of is practicable, consistent with carrying (b) * * * weighted votes for each position shall out the declared policy of the Act, and (1) One member shall be nominated be the nominee for that respective the issuance of several orders applicable by the handler who handled the largest position. to subdivisions of the production area volume of hazelnuts during the two * * * * * would not effectively carry out the marketing years preceding the (f) Nominations received in the declared policy of the Act; and marketing year in which nominations foregoing manner by the Board for all (5) All handling of hazelnuts grown in are made; handler and grower member and the production area as defined in the (2) One member shall be nominated alternate member positions shall be marketing agreement and order, as by the handler who handled the second certified and sent to the Secretary at amended, and as hereby proposed to be largest volume of hazelnuts during the least 60 days prior to the beginning of further amended, is in the current of two marketing years preceding the each two-year term of office, together interstate or foreign commerce or marketing year in which nominations with all necessary data and other directly burdens, obstructs or affects are made; information deemed by the Board to be such commerce. (3) One member shall be nominated pertinent or requested by the Secretary. List of Subjects in 7 CFR Part 982 by the handler who handled the third If nominations are not made within the largest volume of hazelnuts during the time and manner specified in this Filberts, Hazelnuts, Marketing two marketing years preceding the subpart, the Secretary may, without agreements, Nuts, Reporting and marketing year in which nominations regard to nominations, select the Board recordkeeping requirements. are made; members and alternates on the basis of For the reasons set forth in the * * * * * the representation provided for in this preamble, 7 CFR part 982 is proposed to 6. In § 982.32, paragraphs (a), (b), (c) subpart. be amended as follows: and (f) are revised to read as follows: * * * * * 30180 Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 7. In § 982.33, paragraph (b) is revised § 982.51 [Amended] value of restricted credits for the current to read as follows: 12. In § 982.51, paragraph (a) is marketing year. Until bonding rates for amended by removing the word a marketing year are fixed, the rates in § 982.33 Selection and term of office. ‘‘percent’’ at the end of the first effect for the preceding marketing year * * * * * sentence. shall continue in effect. The Board (b) Term of office. The term of office 13. In § 982.52, paragraph (b) is should make any necessary adjustments of Board members and their alternates revised to read as follows: once such new rates are fixed. shall be for two years beginning on July (d) Restricted credit purchases. Any 1 and ending on June 30, but they shall § 982.52 Disposition of restricted sums collected through default of a serve until their respective successors hazelnuts. handler on the handler’s bond shall be are selected and have qualified: * * * * * used by the Board to purchase restricted Provided, That beginning with the (b) Export. Sales of certified credits from handlers, who have such 199ll–9ll marketing year, no merchantable restricted hazelnuts for restricted credits in excess of their member shall serve more than three shipment to destinations outside the needs, and are willing to part with consecutive two-year terms as member United States and such other them. The Board shall at all times and no alternate member shall serve distribution areas as may be purchase the lowest priced restricted more than three consecutive two-year recommended by the Board and credits offered, and the purchases shall terms as alternate unless specifically established by the Secretary shall be be made from the various handlers as exempted by the Secretary. Nomination made only by the Board. Any handler nearly as practicable in proportion to elections for all Board grower and desiring to export any part or all of that the quantity of their respective offerings handler member and alternate positions handler’s certified merchantable of the restricted credits to be purchased. shall be held every two years. restricted hazelnuts shall deliver to the (e) Unexpended sums. Any * * * * * Board the certified merchantable unexpended sums which have been 8. In § 982.37, paragraph (b) is revised restricted hazelnuts to be exported, but collected by the Board through default to read as follows: the Board shall be obligated to sell in of a handler on the handler’s bond, export only such quantities for which it remaining in the possession of the § 982.37 Procedure. may be able to find satisfactory export Board at the end of a marketing year, * * * * * outlets. Any hazelnuts so delivered for shall be used to reimburse the Board for (b) The Board may vote by mail, export which the Board is unable to its expenses, including administrative telephone, telegraph, or other means of export shall be returned to the handler and other costs incurred in the communication: Provided, That any delivering them. Sales for export shall collection of such sums, and in the votes (except mail votes) so cast shall be be made by the Board only on execution purchase of restricted credits as confirmed at the next regularly of an agreement to prevent exportation provided in paragraph (d) of this scheduled meeting. When any into the area designated in § 982.16. A section. proposition is submitted for voting by handler may be permitted to act as an (f) Transfer of restricted credit any such method, its adoption shall agent of the Board, upon such terms and purchases. Restricted credits purchased require 10 concurring votes. conditions as the Board may specify, in as provided for in this section shall be * * * * * negotiating export sales, and when so turned over to those handlers who have 9. In § 982.39, paragraph (i) is revised acting shall be entitled to receive a defaulted on their bonds for liquidation to read as follows: selling commission as authorized by the of their restricted obligation. The Board. The proceeds of all export sales, quantity delivered to each handler shall § 982.39 Duties. after deducting all expenses actually be that quantity represented by sums * * * * * and necessarily incurred, shall be paid collected through default. (i) To furnish to the Secretary a report to the handler whose certified * * * * * of the proceedings of each meeting of merchantable restricted hazelnuts are so 15. In § 982.57, paragraph (b) is the Board held for the purpose of sold by the Board. revised to read as follows: making marketing policy * * * * * § 982.57 Exemptions. recommendations. 14. In § 982.54, paragraphs (b), (c), (d), 10. In § 982.40, paragraph (c)(2) (e) and (f) are revised to read as follows: * * * * * introductory text is amended by (b) Sales by growers direct to removing the word ‘‘shall’’ in the third § 982.54 Deferment of restricted consumers. Any hazelnut grower may sentence and adding in its place the obligation. sell hazelnuts of such grower’s own word ‘‘may’’. * * * * * production free of the regulatory and 11. In § 982.46, paragraph (b) is (b) Bonding requirement. Such bond assessment provisions of this part if revised to read as follows: or bonds shall, at all times during their such grower sells such hazelnuts in the effective period, be in such amounts area of production directly to end users § 982.46 Inspection and certification. that the aggregate thereof shall be no at such grower’s ranch or orchard or at * * * * * less than the total bonding value of the roadside stands and farmers’ markets. (b) All hazelnuts so inspected and handler’s deferred restricted obligation. The Board, with the approval of the certified shall be identified as The bonding value shall be the deferred Secretary, may establish such rules, prescribed by the Board. Such restricted obligation poundage regulations, and safeguards and require identification shall be affixed to the multiplied by the applicable bonding such reports, certifications, and other hazelnut containers by the handler rate. The cost of such bond or bonds conditions, as are necessary to ensure under direction and supervision of the shall be borne by the handler filing that such hazelnuts are disposed of only Board or the Federal-State Inspection same. as authorized. Mail order sales are not Service, and shall not be removed or (c) Bonding rate. Said bonding rate exempt sales under this part. altered by any person except as directed shall be an amount per pound as 16. In § 982.58, the last sentence of by the Board. established by the Board. Such bonding paragraph (a) is revised to read as * * * * * rate shall be based on the estimated follows: Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Proposed Rules 30181 § 982.58 Research, promotion, and market (b) In order to provide funds for the § 982.63 Contributions. development. administration of the provisions of this The Board may accept voluntary (a) * * * The expenses of such part during the first part of a fiscal contributions but these shall only be projects shall be paid from funds period before sufficient operating used to pay expenses incurred pursuant collected pursuant to § 982.61, § 982.63, income is available from assessments on to § 982.58. Furthermore, such or credited pursuant to paragraph (b) of the current year’s shipments, the Board contributions shall be free from any this section. may accept the payment of assessments encumbrances by the donor and the * * * * * in advance, and may also borrow money Board shall retain complete control of 17. Section 982.61 is amended by for such purpose. Further, payment their use. discounts may be authorized by the designating the existing undesignated Dated: May 24, 1995. paragraph as paragraph (a) and adding Board upon the approval of the Lon Hatamiya, a new paragraph (b) to read as follows: Secretary to handlers making such advance assessment payments. Administrator. § 982.61 Assessments. 18. A new § 982.63 is added to read [FR Doc. 95–13928 Filed 6–6–95; 8:45 am] (a) * * * as follows: BILLING CODE 3410±02±P i Reader Aids Federal Register Vol. 60, No. 109 Wednesday, June 7, 1995 INFORMATION AND ASSISTANCE CFR PARTS AFFECTED DURING JUNE Federal Register At the end of each month, the Office of the Federal Register Index, finding aids & general information 202±523±5227 publishes separately a List of CFR Sections Affected (LSA), which Public inspection announcement line 523±5215 lists parts and sections affected by documents published since the Corrections to published documents 523±5237 revision date of each title. Document drafting information 523±3187 Machine readable documents 523±4534 3 CFR 381...... 28547 Proclamations: 10 CFR Code of Federal Regulations 6806...... 28509 Index, finding aids & general information 523±5227 6807...... 29957 440...... 29469 Printing schedules 523±3419 Administrative Orders: Proposed Rules: 50...... 29784 Laws Presidential Determination: No. 95±21 of May 16, 12 CFR Public Laws Update Service (numbers, dates, etc.) 523±6641 1995 ...... 28699 Additional information 523±5230 No. 95±22 of May 19, 202...... 29965 1995 ...... 29463 226...... 29969 Presidential Documents Proposed Rules: Executive orders and proclamations 523±5230 5 CFR 203...... 30013 Public Papers of the Presidents 523±5230 890...... 28511 Weekly Compilation of Presidential Documents 523±5230 13 CFR 7 CFR 121...... 29969 The United States Government Manual Ch. VI...... 28511 124...... 29969 General information 523±5230 319...... 30157 14 CFR Other Services 401...... 29749, 29959 443...... 29959 39 ...... 28524, 28525, 28527, Data base and machine readable specifications 523±4534 457...... 29959 28529, 28702, 28715, 29978, Guide to Record Retention Requirements 523±3187 620...... 28511 29979, 29981, 29982 Legal staff 523±4534 945...... 29724 71...... 28531, 28716 Privacy Act Compilation 523±3187 947...... 29750 97...... 28531, 28532 Public Laws Update Service (PLUS) 523±6641 953...... 28701 121...... 29753 TDD for the hearing impaired 523±5229 981...... 28520 125...... 29753 1007...... 29436 127...... 29753 ELECTRONIC BULLETIN BOARD 1093...... 29436 129...... 29753 135...... 29753 Free Electronic Bulletin Board service for Public Law 1094...... 29436 Proposed Rules: numbers, Federal Register finding aids, and list of 1096...... 29436 1099...... 29465 25 ...... 28547, 28550, 30019 documents on public inspection. 202±275±0920 1108...... 29436 39 ...... 28761, 28763, 29511, FAX-ON-DEMAND 1220...... 29960 29513, 29795, 29797, 29800 71 ...... 28551, 28764, 30027, You may access our Fax-On-Demand service. You only need a fax 1230...... 29962 30028, 30029 machine and there is no charge for the service except for long 1468...... 28522 73...... 28552 distance telephone charges the user may incur. The list of Proposed Rules: 135...... 28765 documents on public inspection and the daily Federal Register’s 273...... 29767 234...... 29514 table of contents are available using this service. The document 982...... 30170 984...... 28744 numbers are 7050-Public Inspection list and 7051-Table of 15 CFR Contents list. The public inspection list will be updated 1126...... 28745 immediately for documents filed on an emergency basis. 1150...... 30013 Proposed Rules: NOTE: YOU WILL ONLY GET A LISTING OF DOCUMENTS ON 1280...... 28747 792...... 30030 FILE AND NOT THE ACTUAL DOCUMENT. Documents on 8 CFR 16 CFR public inspection may be viewed and copied in our office located at 800 North Capitol Street, N.W., Suite 700. The Fax-On-Demand 3...... 29467, 29469 Proposed Rules: telephone number is: 301±713±6905 204...... 29751 409...... 28554 Proposed Rules: 1307...... 29518 204...... 29771 FEDERAL REGISTER PAGES AND DATES, JUNE 17 CFR 9 CFR 200...... 28717 28509±28700...... 1 Proposed Rules: 240...... 28717 28701±29462...... 2 3...... 28834 98...... 29781 19 CFR 29463±29748...... 5 130...... 30157 Proposed Rules: 29749±29958...... 6 201...... 29506 10...... 29520 29959±30182...... 7 308...... 28547 12...... 29520 310...... 28547 102...... 29520 318...... 28547 134...... 29520 320...... 28547 177...... 29520 325...... 28547 326...... 28547 20 CFR 327...... 28547 200...... 29983 ii Federal Register / Vol. 60, No. 109 / Wednesday, June 7, 1995 / Reader Aids 320...... 28534 Proposed Rules: 44 CFR 245...... 29491 Proposed Rules: 13...... 29523, 29532 64...... 28732 247...... 29491 404...... 28767 249...... 29491 37 CFR 65...... 29993, 29995 410...... 28767 67...... 29997 251...... 29491 Proposed Rules: Proposed Rules: 252...... 29491 21 CFR 1...... 30157 67...... 30052 253...... 29491 510...... 29754 915...... 30002 39 CFR 522 ...... 29754, 29984, 29985 45 CFR 931...... 30002 558 ...... 29481, 29482, 29483 Proposed Rules: 1357...... 28735 933...... 28737 265...... 29806 1220...... 29986 Proposed Rules: 942...... 30002 1308...... 28718 951...... 30002 40 CFR Ch. VII...... 30058 Proposed Rules: 952...... 30002 54...... 29801 9...... 29954 47 CFR 970...... 28737, 30002 182...... 28555 52 ...... 28720, 28726, 28729, 0...... 30002 1831...... 29504 186...... 28555 29484, 29763 43...... 29485 1852...... 29504 872...... 30032 63...... 29484 61...... 29488 271...... 28539, 29992 64...... 29489 49 CFR 22 CFR Proposed Rules: 65...... 28542 571...... 30006 52 ...... 28557, 28772, 28773, 21...... 29987 73...... 29491 1023...... 30011 502...... 29988 29809 74...... 28546 70...... 29809, 30037 Proposed Rules: 26 CFR Proposed Rules: 571...... 28561 81...... 30046 0...... 29535 301...... 28719 180...... 30048 32...... 30058 300...... 29814 36...... 30059 50 CFR 30 CFR 721...... 30050 61...... 28774 17...... 29914 886...... 29756 227...... 28741 41 CFR 64...... 28774 Proposed Rules: 73...... 29816, 29817 651...... 30157 Ch. VII...... 29521 Proposed Rules: 76...... 29533 672...... 29505 926...... 29521 201±9...... 28560 80...... 28775, 29535 Proposed Rules: 17...... 29537 31 CFR 42 CFR 48 CFR 285...... 28776 0...... 28535 Proposed Rules: 202...... 29491 630...... 29543 412...... 29202 203...... 29491 649...... 29818 33 CFR 413...... 29202 206...... 29491 650...... 29818 100...... 29756, 29757 424...... 29202 207...... 29491 651...... 29818 110...... 29758 485...... 29202 209...... 29491 117...... 29760 489...... 29202 215...... 29491 164...... 28834 217...... 29491 165 ...... 29761, 29762, 30157 43 CFR 219...... 29491 LIST OF PUBLIC LAWS Proposed Rules: Public Land Order: 225...... 29491 7143...... 28540 117...... 29804 226...... 29491 Note: No public bills which 7144...... 28541 228...... 29491 have become law were 34 CFR 7145...... 28541 231...... 29491 received by the Office of the 7146...... 28731 Proposed Rules: 232...... 29491 Federal Register for inclusion 700...... 30160 Proposed Rules: 235...... 29491 in today's List of Public 11...... 28773 237...... 29491 Laws. 36 CFR 426...... 29532 242...... 29491 1236...... 29989 427...... 29532 244...... 29491 Last List June 6, 1995